EN BANC
G.R. No. L-10263 March 13, 1915
THE UNITED STATES, Plaintiff-Appellee, vs. JAIME FILART and HILARIO SINGSON, defendant-appellants.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of Ilocos Sur convicting the accused of a violation of Act No. 1757, known as the
Gambing Law, and sentencing Jaime Filart to one month's imprisonment and to pay a fine of P500 and Hilario Singson to pay a fine of P500, and
each to pay one-half of the costs. The judgment also confiscated the automobile which was the object of the lottery complained of, and the sum of
P2,090 which was obtained from the sale of the tickets, each one of which represented a chance to win the
automobile.chanroblesvirtualawlibrary chanrobles virtual law library
The information alleges: "That on or before the 31st day of May, 1914 in the municipality of Vigan, Province of Iloccos, Sur, the said Jaime Filart and
Hilario Singson, conspiring together and mutually aiding each other, and as instigators and promotes, voluntarily, maliciously, and illegally played,
exploited, and took part in a lottery or raffle of an automobile, which was then and there the property of the said Jaime Filart, with the intention
then and there to dispose of said automobile by chance for the sum derived from the sale of 450 tickets or numbers which the said accused
distributed and sold in various municipalities of the Province of Ilocos Sur at the rate of P5 for each ticket or number." chanrobles virtual law library
It appears from the evidence in the case that the appellants entered into an agreement whereby they would jointly sell to the public 450 tickets
successively numbered from one up, each number representing a chance on an automobile which was to be drawn by lot as a prize as soon as the
tickets so numbered were sold. Of the 450 numbers 370 were sold for P5 each and the remaining 80 for P3
each.chanroblesvirtualawlibrary chanrobles virtual law library
The drawing for the prize took place on the evening of the 31st of May, 1914. The winner was determined in the following manner: The numbers
composing the 450, each written on a separate piece of paper, were placed together in a box and thoroughly mixed. A boy was selected who
placed his hand in the box and drew out a number. This he delivered to a person placed there for he purposed, who unfolded the paper and read
the number in a loud voice while the appellant Jaime Filart, with a list of the 450 numbers referred to, struck from the list the number
corresponding to that drawn from the box. This was repeated until all of the numbers were drawn from the box and stricken from the list. It was
agreed that the last number drawn from the box should be the winning number and that the owner of that number should win the automobile.
The last number drawn from the box was one which had been bought by Lucas Siping, who was duly and publicly proclaimed by Jaime Filart as the
winner of the automobile. During the drawing of the numbers both of the appellants were present, as were about 40 other
individuals.chanroblesvirtualawlibrary chanrobles virtual law library
We have no doubt from the record of the correctness of the finding of the trial court that the appellants in this case committed the acts with which
they stand charged. The evidence is overwhelmingly in favor of the prosecution and we find nothing which would justify us in reversing the
decision of the trial court as to the facts.chanroblesvirtualawlibrary chanrobles virtual law library
Section 7 of Act No. 1757 provides, so far as material to the present case, as follows:
The playing at and the conducting of any game of monte, jueteng, or any form of lottery or policy . . . is hereby prohibited, and any person taking
any part therein . . . shall be punished as provided in section 3 hereof. . . . .
This section also provides that:
It shall be no defense to any criminal action under this section that the defendant acted as the agent of another or that he had no interest in the
result.
We are satisfied that the provisions of the section quoted cover the case in hand.chanroblesvirtualawlibrary chanrobles virtual law library
A lottery is said to be "a species of gaming, which may be defined as a scheme for the distribution of prizes by chance among persons who have
paid, or agreed to pay, a valuable consideration for the chance to obtain a prize." It is also defined as "a scheme for the distribution of prizes by
chance:" and "a scheme by which result is reached by some action or means taken, and in which a result man's choice or will has no part, nor can
human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished." It has also been
stated that "where a pecuniary consideration is paid, and it is held determined by lot or chance, according to some scheme held out to the public,
what the party who pays the money is to have for it . . . it is a lottery." It has also been held that the word lottery "embraces the elements of
procuring through lot or chance, by the investment of a sum of money or something of value, some greater amount of money or thing of greater
value;" and that "where small amounts are hazarded to gain large amounts, and the result of winning or losing is determined by chance, in which
neither choice nor skill can operate to influence the result, there is gambling by lot, or a prohibited lottery;" and "any scheme whereby one, on
paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, nothing, as some formula of chance
may determine" is a lottery. It was held in the case of Equitable Loan Co. vs. Waring, 117 Ga., 599, that three elements enter into a lottery scheme:
(1) A consideration; (2) chance: (3) a prize, or some advantage or inequality in amount or value which is in the nature of
prize.chanroblesvirtualawlibrary chanrobles virtual law library
The facts of record place this case within the definition generally given of a lottery.chanroblesvirtualawlibrary chanrobles virtual law library
We are satisfied that the judgment should be affirmed so far as the criminal penalty is concerned but must be reversed as to the confiscation of the
automobile and the money obtained from the sale of the tickets on the same. Section 1 of Act 2212 adds a section (13) to Act No. 1757, which is as
follows:
The court convicting a person of the violation of any of the provisions of this Act shall order the confiscation of the money, article, instruments,
appliances, and devices used in gambling. Articles, instruments, appliances, and devices capable only of being used for gambling shall be destroyed
under the order of the court. Money and the proceeds of the confiscated articles which are capable of being used otherwise than for gambling
purposes shall be accounted for, accredited and disposed of in the same manner as the proceeds of fines imposed by the court. The provisions of
this section shall be applicable in cases of conviction of the violation of municipal ordinances prohibiting gambling.
In the case before us neither the automobile nor the money obtained from the sale of tickets was in the possession of or before the court, or in the
possession of any party to the action at any time during the trial or at the time the judgment of conviction and confiscation was rendered. We are
of the opinion that, in cases where the court is authorized to confiscate property, the property to be confiscated must be before the court in such
manner that it can be said to be within its jurisdiction. As we have said, neither the automobile nor the money was in the possession of or before
the court, or in the possession of any of the parties to the action at the time the order of confiscation was made. Rather, the automobile, as well as
the money, was in the possession of persons claiming to own or have an interest therein and who were not parties to the action and ever whom
the court had no jurisdiction at the time.chanroblesvirtualawlibrary chanrobles virtual law library
The judgment of conviction and the sentence imposed thereunder are affirmed, with the exception of the portion confiscating the automobile and
the money obtained from the sale of the numbers thereon, and as to such portion it is reversed. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Trent and Araullo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila EN BANC
G.R. No. L-19982 December 29, 1922
"EL DEBATE," INC., petitioner,
vs.
JOSE TOPACIO, Director of Posts, respondent.
MALCOLM, J.:
On November 16, 1922, El Debate, a newspaper of the City of Manila, published a full page announcement which in translation reads as follows:
P18,000.00
HOW WIN THEM?
READ THE FOLLOWING
GRAND NUMBER CONTEST
El Debate opens on this date two contests:
The first contest is for the award of prizes for the nearest approximate guesses as to the total number of votes that will be cast for any of
the winning candidates for Carnival Queen either in the provinces or in Manila. This contest will close at noon, December 23d.
The second contest is for the award for the nearest approximate guesses as to the total number of votes that the Queen elect will receive
for the Carnival queenship. This second contest will close at noon of the day in which the final canvass of the Carnival queen contest will
take place.
CONDITIONS TO PARTICIPATE IN THE CONTESTS
Any subscriber to El Debate may participate in these two contests by paying in advance at least the amount of the subscription of a quarter under
the following conditions: The person who pays the price of a quarterly subscription shall be given a coupon for the first contest and another coupon
for the second contest. He who pays for two quarters shall be given two coupons for the first contest and two for the second contest. He who pays
for three quarters, that is to say, nine months, will receive three coupons for each of the said contests. And the one paying for a whole year will
receive four coupons for each of the said contests. But payment is to be strictly in advance.
EACH "CALCULO" (ESTIMATE OR GUESS) MUST BE EXPLAINED
Each cálculo (estimate or guess) for any of the two contests must be accompanied by a brief statement or explanation containing the facts upon
which it is based. This explanatory statement may be in English, or Spanish, or in any Philippine dialect. And in order that the participants may have
some basis for making a correct estimate (guess), El Debate will publish every day information about the partial results that will be made from day
to day at the Carnival offices, circulation or newspapers, etc. Estimates (guesses) without the corresponding explanatory note will not be
considered.
THE VERDICT
The decision of the first as well as the second contest will be made immediately after the Carnival Headquarters had made public the result of the
provincial elections and the final election, respectively. As soon as a certificate of the results in the provinces and of the final result is received in
our office, we will proceed to select from the estimates (guesses), those that are the nearest in order to award the prize winners. The statements
or explanations of the winning participants upon which their estimate (guess) was based will be punished in El Debate for the satisfaction of the
public. The checking of the winners will be made in the office of El Debate, 2 De la Rama Bldg., Sta. Cruz, Manila.
THE PRIZES
There are 110 prizes of the total value of P6,000 for the first contest, and for the second contest there are 215 prizes, the total value of which is
P12,000, that is, a grand total of P18,000, based upon 20% of the value of 6,000 full subscriptions for one year, which is the present circulation of El
Debate, and should this total value not be covered in the meantime, a proportional reduction of the number and of the amount of the prizes will be
made.lawphil.net
THE PRIZES FOR THE FIRST CONTEST
First Prize .......................................................
P2,000.00
Second Prize ......................................................
1,000.00
Third Prize .......................................................
500.00
Two prizes of P200.00 each ..............................
400.00
Five prizes of P100.00 each .............................
500.00
Ten prizes of P50.00 each ...............................
500.00
Twenty prizes of P20.00 .................................
400.00
Seventy prizes of P10.00 ................................
700.00
110 prizes .....................................................
6,000.00
THE PRIZES FOR THE SECOND CONTEST
First Prize .......................................................
P4,000.00
Second Prize ...............................
2,000.00
Third Prize ...............................
1,000.00
Two prizes of P400.00 each ...............................
800.00
Ten prizes of P100.00 each ...............................
1,000.00
Twenty prizes of P50.00 each ...............................
1,000.00
Forty prizes of P20.00 ...............................
140 prizes of P10.00 ...............................
800.00
1,400.00
215 prizes .....................................................
12,000.00
The Director of Posts, following the advice of the Attorney-General, refused to admit the issues of El Debate, containing the advertisement, to the
mails, for the reason that it fell within the provisions of the Administrative Code concerning non-mailable matter. Not satisfied with the ruling of
the Director of Posts, the publishers of El Debatehave had recourse to these original proceedings in mandamus to settle the controversy between
the newspaper and the Government.
The argument, while brilliant and informative to an unusually high degree, has covered a somewhat wider range than is essential. The issues will be
more sharply defined and, correspondingly, our burden will be lightened, if all extraneous matter is thrown overboard.
The demurrer interposed by the Government serves to admit the fact pleaded in the complaint. The applicable law is, likewise, conceded, as is also
the extent of power of the Director of Posts.
Section 1954 (a) of the Administrative Code includes, as absolutely non-mailable matter, "Written or printed matter in any form advertising,
describing, or in any manner pertaining to, or conveying or purporting to convey any information concerning any lottery, gift enterprise or similar
scheme depending in whole or in part upon lot or chance. . . ." As previously announced, the courts will not interfere with the decision of the
Director of Posts as to what is, and what is not, mailable matter, unless clearly of opinion that it was wrong. (Sotto vs. Ruiz [1921], 41 Phil., 468;
Reyes vs. Topacio, p. 207, ante.)
In the next place, the fact that an Attorney-General of the Philippines had held one way and another Attorney-General an opposite way (and to
make the record complete, we would add that an Attorney-General in 1912 also rendered an opinion on the subject), with reference to carnival
lotteries and newspaper guessing schemes; the fact that three Attorneys-General of the United States sustained the validity of guessing contests,
only to be overruled by an Attorney-General subsequently in office; the fact that the older authorities in the United States refused to hold such
contests illegal, while a contrary view is now entertained; and the fact that guessing contests are held not to be lotteries in England, Canada, and
other foreign countries, is relatively unimportant. Passing by the historical phases, what we want to know is the actual state of the law, and if the
doctrines announced in the authorities rest on a sound basis of reason.
In the next place, advancing one step further toward the issues, while countless definitions of lottery have been attempted, the authoritative one
for this jurisdiction is that of the United States Supreme Court, in analogous cases having to do with the power of the United States Postmaster
General, viz.: The term "lottery" extends to all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize
concerts, raffles at fairs, etc., and various forms of gambling. The three essential elements of lottery are: First, consideration; second, prize; and
third, chance. (Horner vs. United States [1892], 147 U.S., 449; Public Clearing House vs. Coyne [1903], 194 U. S. 497; U. S. vs. Filart and Singson
[1915], 30 Phil., 80; U. S. vs. Olsen and Marker [1917], 36 Phil., 395; U. S. vs.Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction
Company vs. Carmona, p. 233, ante.)
Reverting then to the admitted facts, to the admitted law, and to the admitted judicial doctrines, the fundamental question is this: Was the
decision of the Director of Posts, refusing the privileges of the mails to El Debate, clearly erroneous? And the subsidiary question is this: Is the
guessing contest of El Debate a "lottery, gift enterprise, or similar scheme depending in whole or in part upon lot or chance" within the meaning of
the law?
Counsel for the petitioner is the first to admit that the element of prize is present. We are, therefore, relieved from considering this point. But he
maintains that the element of chance "has been reduced to a minimum and is practically nil, while the element of consideration is totally absent."
Taking up, therefore, these two points in order, we finally arrive at our task.
What may be termed "the pure chance doctrine" is no longer upheld by the weight of authority in the United States. The element of chance is
present even though it may be accompanied by an element of calculation or even of certainly. Counsel, therefore, practically admits himself out of
court when he concedes that any element of chance is present, for let it be remembered that our law includes the phrase "depending in whole or
in part upon lot or chance." (Public Clearing House vs. Coyne, supra; People ex rel. Ellison vs. Lavin [1904], 179 N. Y., 164; 66 L. R. A., 601 [estimate
of the number of cigars on which a tax is paid during a specified month]; 25 Ops. Atty.-Gen. U. S., 286 [estimate of the total number of paid
admissions to the World's Fair at St. Louis, Missouri, from its opening to its close, and estimate of the popular vote cast for the winning candidate
for President of the United States in 1904]; Stevens vs. Cincinnati Times-Star Company [1905], 72 Ohio St., 112; 106 A. S. R., 586 [guessing the
number of votes that will be cast for a public officer at an election]; Waite vs. Press Publishing Association [1907], 155 Fed., 58; 12 Ann. Cas., 319
[estimate of the total popular votes to be cast in the election for the office of President of the United States].)
It is difficult to select one of the cases cited to elucidate the point under consideration, because each and everyone of them contains well
considered opinions. It was thus the decision of the United States Supreme Court in Public Clearing House vs. Coyne which marked the turning
point toward a stricter application of the law. It was the decision of the Court of Appeals of the State of New York in People ex rel. Ellison vs. Lavin,
which included the best dissertation on the philosophical subject of what constitutes chance. While it was the decision of the Federal Court in
Waite vs. Press Publishing Association which had a splendid résumé of the situation, followed by all the encyclopedias. We choose the latter
because the more recent and because the briefest.
As indicated, in the case of Waite vs. Press Publishing Association, the question before the court was whether a guessing contest inaugurated by a
publishing association prior to an election, offering certain rewards or prizes to those persons who, prior to such election, submitted to the
association the nearest correct estimates of the total number of votes cast for the office of President of the United States, and at the time paid a
certain sum as the subscription to a named periodical, was a contest of chance and a lottery, in violation of the laws of the United States and the
laws of the State of Michigan. We quote:
Several years ago it was a doubtful question whether a so-called guessing contest was valid or not. Three attorneys-general of the United
States (Miller, Griggs, and Knox) had in formal opinions sustained the validity of similar contests, and following them, Judge Thomas, in
the case of United States vs. Rosenblum (121 Fed. Rep., 180), had refused to hold such a contest illegal, and had sustained a demurrer to
an information against the president of a corporation then engaged in carrying on one. These rulings were in accordance with the trend
of authorities in this country and England, the cases being cited in the opinion of Judge Thomas (121 Fed. Rep., 182). The exception to be
noted was the case of Hudelson vs. State (94 Ind., 426; 48 Am. Rep., 171), in which the Supreme Court of Indiana held that a contest
dependent upon the guessing of the nearest to the number of beans contained in a glass globe was a lottery or gift enterprise. The cases
which sustained the validity of the various guessing contests all held that, since the correct number either did or would exist, more or less
skill and judgment could be exercised in guessing it, and therefore the estimate of the nearest number to the correct one could not
properly be considered a matter of mere chance. On the other hand, in the Hudelson case the court, for the first time, drew attention to
the fact that, while the number of beans in the glass globe would be fixed and definite, the ascertainment of that number could be
nothing other than a mere matter of guessing, for it was impossible under the circumstances to ascertain the information upon which a
correct estimate could alone be made. Subsequent to the decision in the Hudelson case came that of the Supreme Court of the United
States in Public Clearing House vs. Coyne (194 U.S., 497; 24 U. S. Sup. Ct. Rep., 789; 48 U. S. [L. ed.], 1092; and People vs. Lavin, 179 N. Y.,
164; 1 Ann. Cas., 165; 71 N. E. Rep., 753; 66 L. R. A., 601). In the Coyne case the court sustained a fraud order issued by the post-office
department, directing the rejection of the mail of "The Public Clearing House" on the ground that it was a fraudulent scheme and
constituted a lottery. It is unnecessary to describe the details of the scheme; the facts will be found in the opinion. The court, speaking by
Mr. Justice Brown, disposes of the matter by saying:
"The scheme lacks the elements of a legitimate business enterprise, and we think there was no error in holding it to be lottery within the
meaning of the statute."
This case was followed by Preferred Mercantile Co. vs. Hibbard (142 Fed. Rep., 877), decided by Judge Lowell.
In the Lavin case (179 N. Y., 164; 1 Ann. Cas., 165; 71 N. E. Rep., 753; 66 L. R. A., 601), the scheme provided for the distribution of money
among those purchasers of certain brands of cigars who should estimate most closely the number of cigars of all brands upon which the
government would collect taxes during the month named. Discussing what constitutes chance, Judge Cullen, speaking for the court, says
(page 168 of 179 N. Y., page 754 of 71 N. E. Rep.):
"It is strictly and philosophically true in nature and reason that there is no such thing as chance or accident; it being evident that these
words do not signify anything really existing, anything that is truly an agent or cause of any event; but they signify merely men's
ignorance of the real and immediate cause. But though nothing occurs in the world as a result of chance, the occurrence may be a matter
of chance to the observer from his ignorance of antecedent causes or of the laws of their operation."
The court refers at some length to the Coyne Case (194 U. S., 497; 24 U. S. Sup. Ct. Rep., 789; 48 U. S. [L. ed.], 1092), and reaches the
conclusion that the scheme before it falls far within the requisites of a lottery as defined in that case, under a statute very similar to the
New York one. The two cases referred to, the Coyne case and the Lavin case, are cited by Attorney-General Moody in his opinion of Nov.
28, 1904 (25 Opinions of Attorneys-General, 286), as authority for the reversal of the opinions of his predecessors holding that "guessing
contest" were not within the prohibition of the federal statutes. The schemes presented to Attorney-General Moody for his decision
were dependent, the one upon estimates of the total number of paid admissions to the World's Fair at St. Louis, and the other upon
estimates of the total vote cast for President in 1904. The conclusions he reached were as follows:
"Conceding that the estimates in such a contest (the World's Fair contest) will be to some extent affected by intelligent calculation, the
conclusion is, nevertheless, irresistible that it is largely a matter of chance which competitor will submit the nearest correct estimate. The
estimates cannot be predicated upon natural and fixed laws, since the total number of admissions may be affected by many conditions
over which the participants in this scheme have no control and cannot possibly foresee." (Page 290.)
And again:
"Neither of these contests is a "legitimate business enterprise." In each thousands invest small sums in the hope and expectation that
luck will enable them to win large returns. A comparatively small percentage of the participants will realize their expectations, and
thousands will get nothing. They are, in effect, lotteries, under the guise of 'guessing contests,' "(Page 291.)
The last case to which we care to call attention upon the general question is that of Stevens vs. Cincinnati Times-Star Co. (72 Ohio St.,
112; 73 N. E. Rep., 1058; 106 Am. St. Rep., 586). In this case the Supreme Court of Ohio passed upon a number of guessing contests
carried on by newspapers in Ohio. They involved the total vote for a state officer at a coming state election. Respecting the nature of
these contests, the court said (page 150 of 72 Ohio St., page 1061 of 73 N. E. Rep.):
"It is true that one acquainted with the results of the elections of the state in previous years and educated in politics would have some
advantages over one ignorant in those respects, yet it must be apparent even to a casual observer that the result would depend upon so
many uncertain and unascertainable causes that the estimate of the most learned would be after all nothing more than a random and
undecisive judgment. In the sense above indicated there is an element of skill, possibly certainty, involved, but it is clear that the
controlling predominating element is mere chance. It was a chance as to what the total vote would be; it was equally a chance as to what
the guesses of the other guessers would be."
xxx xxx xxx
We think, for the reasons given by the courts in the cases from which we have already quoted, the guessing contest before us came
within the terms of the Michigan law and the mischief at which it was aimed. At the time the estimates on which this suit is based were
submitted, the vote was yet to be cast; indeed, on June 6, 1904, when the Battrick estimate was sent in, one of the leading candidates for
President had not yet been nominated. The number of persons who would be qualified to vote at the election, and the number who
would cast votes which would be counted, were not only undetermined but impossible of ascertainment at the time the estimates were
submitted. A thousand causes might, in one way or another, intervene to affect the total vote cast, so that at the best an estimate, if at
all near the total vote cast, would be but a lucky guess. In so great a vote the necessary margin of chance would be so large that no
element of skill or experience could operated to predict the result. While one skilled in national politics and conversant with existing
conditions might make a closer estimate than one wholly ignorant, yet, after all, the successful persons in such a contest would be but
makers of lucky guesses in which skill and judgment could play no effective part.
Conceding that the views of the American decisions are sound, — and upon this point they are so full and clear that little remains to be said;
conceding that the estimates in the contest of El Debate will, to some extent, and possibly to a great extent, be effected by intelligent calculation,
as has been ingeniously argued by counsel for the petitioner, the conclusion is nevertheless irresistible that the scheme depends in part upon
chance. The estimates cannot be predicated upon natural and fixed laws, since the total number of votes that will be cast for the winning
candidates for carnival queen may be affected by many conditions, over which the participants in this scheme have no control and cannot possibly
foresee. We think it is perfectly clear that the dominating and controlling factor in the awarding of the prizes is chance.
In respect to the last element of consideration, the law does not condemn the gratuitous distribution of property by chance, if no consideration is
derived directly or indirectly from the party receiving the chance, but does condemn as criminal, schemes in which a valuable consideration of
some kind is paid directly or indirectly for the chance to draw a prize. But what may appear on its face to be a gratuitous distribution of property by
chance, has often been held to be merely a device to evade the law.
Predicated on these legal assumptions, it is argued here with much force that there is no consideration, for the reason that a subscriber to El
Debate receives the full value of his money by receiving the paper every day for the number of months that he subscribes. The position is tenable,
as respects those persons who would subscribe to the paper regardless of the inducement to win a prize, for as to them there is no consideration.
The position is fallacious, as to other persons who subscribe merely to win a prize (and it is to such persons that the scheme is directed), for as to
them it means the payment of a sum of money for the consideration of participating in a lottery. Moreover, the subscriber do not all receive the
same amount, for there are a few of them who will receive more than the others, and more, too, than the value paid for their subscriptions,
through the chance of a drawing. (17 R. C. L., 1222; U. S. vs. Wallis [1893], 58 Fed., 942; State vs. Mumford [1881], 73 Mo., 647.)
The general rule, therefore, is that guessing competitions or contests are lotteries within the statutes prohibiting lotteries. Indeed, it is very
difficult, if not impossible, for the most ingenious and subtle mind to devise any scheme or plan short of a gratuitous distribution of property, which
will not be held to be in violation of the Gambling Law, and repugnant to the Postal law. It is for the courts to look beyond the fair exterior, to the
substance, in order to unmask the real element and the pernicious tendencies which the law is seeking to prevent.
The purpose of El Debate in devising its advertising scheme was to augment its circulation and thus to increase the number of newspaper readers
in the Philippines — which is commendable. But the advertisement carries along with it a lottery scheme — which is not commendable.
The evils to society arising from the encouragement of the gambling spirit have been recognized here and elsewhere. Experience has shown that
the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are
confined to a few persons and places, but the latter infest the whole community; they enter every dwelling; they reach every class; they prey upon
the hard-earned wages of the poor; they plunder the ignorant and simple. Punitive and condemnatory laws must, therefore, be interpreted and
enforced by the courts in a way calculated to secure the object sought. (U. S. vs. Salaveria [1918], 39 Phil., 102; Phalen vs. Commonwealth of
Virginia [1850], 8 How., 161; Stone vs. Mississippi [1880], 101 U.S., 814.)
Open the door of chance but a little, for one scheme, however ingeniously and meritoriously conceived, to pass through, and soon the whole
country will be flooded with lotteries.
Meeting, therefore, the issues in the case, we rule that the Director of Posts acted advisedly in refusing the use of the mails for the issue of El
Debate which contained the announcement of its guessing contest, and that said contests is a lottery, or gift enterprise depending in part upon lot
or chance, within the meaning of the Postal Law.
The demurrer interposed by the Attorney-General is sustained, and unless the petitioner shall, within five days, so amend the complaint as to state
a cause of action, the case shall be dismissed, with costs. So ordered.
Araullo, C. J., Avanceña, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.
EN BANC
[G.R. No. 14258. August 2, 1919. ]
THE UNITED STATES, Plaintiff-Appellee, v. EUGENIO BAGUIO, Defendant-Appellant.
DECISION
JOHNSON, J. :
On the 24th day of January, 1917, the prosecuting attorney of the Province of Laguna presented a complaint in the Court of First Instance of said
province in which the defendant was charged with a violation of the Gambling Law (Act No. 1757). The complaint alleged:jgc:chanrobles.com.ph
"That in and beginning from the month of November, 1913, up to the month of May, 1914, in the municipality of Paete, Province of Laguna, P. I.,
the accused Eugenio Baguio, wilfully, unlawfully and maliciously was conducting operating and taking part, and did so conduct, operate and take
part, in the prohibited game of chance called ’loteria,’ (lottery), organizing, managing and directing for that purpose a society or an association
commonly known as ’Turnuhan’ and denominated Samahan Abuluyan ng Salapi, the purpose of which apparently was for the mutual aid and help
of its members or associates, but in reality said object was the exploitation and operation of the aforesaid game of chance known as ’Loteria,’ said
society or association was being conducted and operated within the aforementioned dates in the following manner: Persons desiring to become
members of or to take part in the society, could do so by subscribing one or more shares thereof (acciones), each share being represented with a
number, and for every number or share each member had subscribed the latter was to give P1 every Sunday to the accused as the director or
manager of the society, who used to issue to said members a memorandum book (libreta) for every said share in which were entered the sums
thus given every Sunday, thereby the subscribing members were entitled to win a premium of P500 which the accused used to pay and which was
obtained by drawing lots conducted every Sunday under the supervision and management of the accused and effected by means of balls which
were enclosed in two different receptacles called ’tambiolos,’ one of which contained a number of balls equal to the number of members, said balls
were numbered corresponding to the numbers or shares belonging to each member, and the other ’tambiolo’ contained the same number of balls
as those found in the first but these balls were not numbered with the exception of one ball on which was written the word ’suerte’ (luck), and
from the first ’tambiolo’ a ball was drawn and from the second another ball and so on successively, until a ball bearing a number is drawn which
coincided with that bearing the word ’suerte’ and then the drawing of lots ceased, and the owner of the number written on the ball last drawn was
the winner of the premium, the value of which the accused used to pay to the lucky member, thereby the latter was obliged to refund the value of
said premium to the society or ’Turnuhan’ by means of the Payments of the aforementioned weekly installments of one peso and the accused used
to receive two centavos for every peso of the amount of each premium as a recompense for his work as director and manager of the society or
’Turnuhan.’
"Acts committed in violation of Act No. 1757."cralaw virtua1aw library
Upon said complaint, the defendant was duly arrested, arraigned, plead not guilty, tried, found guilty of the crime charged, and sentenced by the
Honorable Manuel Camus to pay a fine of P100 and in case of insolvency to suffer subsidiary imprisonment in accordance with the provisions of the
law, and to pay the costs. From that sentence the defendant appealed.
After hearing the evidence adduced during the trial of the cause, the lower court found that the same showed the following facts to be true beyond
a reasonable doubt:jgc:chanrobles.com.ph
"First. In the particular ’Turnuhan’ society in question, there are 500 ’libretas’ which correspond to shares.
"Second. Each holder of a ’libreta’ or member of the ’Turnuhan’ is obliged to pay the accused as the director or manager P1 weekly.
"Third. Each and every one, therefore, of the holders of ’libretas’ is obliged to pay P500 throughout the whole existence of the ’Turnuhan’ society.
"Fourth. In return for this, each and every one of the ’libreta’ holders is entitled to receive the sum, commonly known as premium, of P500 at any
one week within the 500 weeks.
"Fifth. The time when each libreta holder is to receive his P500 is determined by chance.
"Sixth. For the purpose of determining who is to receive the P500, ’sorteos’ [casting lots] are held every Sunday. On this day the number of each
libreta holder — 1 to 500 — is placed in a ’tambiola’ and in another one 499 blank checks and one marked with the word ’suerte’ are also placed.
Then a number is drawn from the first ’tambiola’ simultaneously with the check from the second one, and the number that is drawn at the time the
check marked ’suerte’ is drawn is entitled to the prize or premium.
"Seventh. The number representing a libreta holder which has already obtained a prize of P500 is no longer included and counted with the others
in subsequent ’sorteos though the libreta holder continues paying weekly due of P1 until he has completed paying at the end of 500 weeks the
agreed P500.
"Eighth. The accused gets his remuneration by either receiving the three first prizes or a percentage on the prizes."cralaw virtua1aw library
After a careful examination of the evidence, we are persuaded that the above findings of fact are clearly supported thereby. The only question
presented by the appellant is whether or not, under such facts, the appellant is guilty of a violation of Act No. 1757.
"Gambling," as defined by Section 1 of Act No. 1757, consists: (a) in the playing of any game for money or any representative of value or valuable
consideration or thing, the result of which game depends wholly or chiefly upon chance or hazard; or (b) in the use of any mechanical invention or
contrivance to determine by chance the loser or winner of money or of any representative of value or of any valuable consideration or thing.
Section 7 of said act prohibits absolutely "the playing at and the conducting of any game of monte, jueteng, or any form of lottery or policy or any
banking or percentage game, or the use of any mechanical invention or contrivance to determine by chance the winner or loser of money or of any
representative of value or of any valuable consideration or thing . . ." Section 7 further provides that "any person taking any part therein or owning
or operating any such mechanical invention or contrivance shall be punished as provided in Section 3 of said act."cralaw virtua1aw library
The lower court held that the defendant was guilty of conducting a lottery in violation of the law. The Attorney- General, Honorable Quintin
Paredes, in a very carefully prepared brief, with the citation of many authorities, reaches the conclusion that the lower court was right and that his
decision should be sustained.
If the defendant and appellant is guilty of conducting a lottery, he is guilty of a violation of the law and should be punished in accordance with the
terms thereof. The law gives us no definition of a lottery. Act No. 1757 is not a new law in criminology. Similar laws exist in nearly every state of the
Union, as well as in nearly every civilized nation. Resort may, therefore, be had to the decisions of the courts where similar laws had been enforced
and interpreted. The Supreme Court of the United States in the case of Horner v. United States (147 U.S., 449), in the course of a very interesting
opinion, defined a lottery as "a distribution of prizes by lot or chance; a game of hazard in which small sums of money are ventured for the chance
of obtaining a larger value, either in money or in other articles." In the course of the opinion, the court said, "They are not in the legal acceptation
of the term mala in se but may properly be made mala prohibita. They are a species of gambling and wrong in their influence."cralaw virtua1aw
library
In law the term lottery embraces all schemes for the distribution of prizes by chance, such as policy-playing, gift-exhibitions, prize-concerts, raffles
at fairs, etc., and includes various forms of gambling. (Horner v. U.S., 147 U.S., 449; Public Clearing House v. Coyne, 194 U.S., 497, 515.)
In the case of Public Clearing House v. Coyne (194 U.S., 497), the facts were every analogous to the facts before us. In that case, the plan
contemplated that each person who became a member or cooperator should pay a certain enrollment fee and agree to pay a certain sum per
month thereafter. At the end of a fixed period, the members were to receive a certain portion of the funds so raised. The success of the plan
obviously depended upon constantly and rapidly increasing the number of subscribers or cooperators. There was sure to be loss to every one
interested in the enterprise as soon as the number of new members ceased to increase. The Supreme Court of the United States held that the
scheme was a lottery and said: "The scheme lacks the elements of a legitimate business enterprise, and we think there was no error in holding it to
be a lottery within the meaning of the statute."cralaw virtua1aw library
It was held in the case of Equitable Loan Co. v. Waring (117 Ga., 599) that three elements enter into a lottery scheme: (a) A consideration; (b) a
chance; and (c) a prize or some advantage or any inequality in amount or value which is in the nature of a prize.
We think that these elements clearly appear from the facts above stated. (U.S. v. Filart and Singson, 30 Phil. Rep., 80; 17 R.C.L., p. 1223.)
We are fully persuaded that the acts of the defendant constituted a violation of Section 7 of Act No. 1757, and he should, therefore, be punished in
accordance with the provisions of the law. Considering the character of the crime and its extent and bad influence upon the people of the
community, we are of the opinion that the sentence of the lower court should be increased, and that the defendant should be sentenced to pay a
fine of P500 and the costs. With that modification of the sentence of the lower court, the same is hereby confirmed. It is, therefore, hereby
ordered and decreed that the defendant and appellant be sentenced to pay a fine of P500, and in case of insolvency to suffer subsidiary
imprisonment in accordance with the provisions of the law, and to pay the costs. So ordered.
Arellano, C.J., Torres, Araullo, Street, Avanceña and Moir, JJ., concur.
EN BANC
G.R. No. L-48227
September 9, 1942
DEMETRIO ENCARNACION, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent.
Conrado V. Sanchez and Enrique M. Fernando for petitioner.
Barcelona for respondent.
MORAN, J.:
Petitioner, Demetrio Encarnacion, was found by the Court of Appeals to be in possession of jueteng lists and was on that ground convicted under
article 195 of the Revised Penal Code, as amended by Commonwealth Act No. 235, the pertinent portion of which reads:
(c) The penalty of prision correccional in its medium degree shall be imposed upon any person who shall, knowingly and without lawful purpose,
have in possession any lottery list, paper or other matter containing letters, figures, signs or symbols which pertains to or are in any manner used in
the game of jueteng or any similar game which has taken place or about to take place.
Petitioner argues that, according to the aforequoted provision, possession alone of listas de jueteng will not suffice to sustain a judgment of
conviction, it being necessary that having such list should be shown to be "knowingly and without lawful purpose" and that the listas de
jueteng "pertain to or are in any manner used in the game of jueteng or any similar game which has taken place or about to take place."chanrobles
virtual law library
Possession by the accused of an article shown to be really a jueteng list, unless otherwise satisfactorily explained, is sufficient proof that it is
without lawful purpose and is connected with a game of jueteng which has taken place or about to take place. The reason is that, in the nature of
things, a jueteng list naturally pertains to a game of jueteng and that the accused would not keep it in his possession but for its connection with
such game of jueteng. The burden, therefore, of the evidence is shifted to the accused to show that his possession is lawful and that the jueteng list
is in no way connected with jueteng game that has taken place or about to take place.chanroblesvirtualawlibrary chanrobles virtual law library
Judgment is affirmed, with costs against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library
Yulo, C.J., Bocobo, Generoso and Lopez Vito, JJ., concur.
SECOND DIVISION
[G.R. No. 11566. August 10, 1916. ]
THE UNITED STATES, Plaintiff-Appellee, v. MARCELO JOSE and TAN BO, Defendant. MARCELO JOSE, Appellant.
DECISION
TRENT, J. :
Marcelo Jose and Tan Bo were each sentenced to pay a fine of P200, to suffer the corresponding subsidiary imprisonment in case of insolvency, and
to pay one-half of the costs for a violation of section 3 of Act No. 1523. Marcelo Jose alone appealed.
It is now urged that the trial court erred (a) in not allowing the appellant a reasonable time for procuring counsel and in appointing an attorney de
officio to defend him against his wishes, and (b) in finding that the evidence of record establishes the guilt of the appellant of the crime charged
beyond a reasonable doubt.
The mercantile firm of Marcelo Jose & Co., composed of Marcelo Jose and Tan Bo, was located at No. 200 Calle Harris, Olongapo. Both members of
this firm were arrested on the night of May 16, 1915, and placed in confinement. About 2 or 3 o’clock in the afternoon of the following day, May
the 17th, the store was searched by the authorities and a one-tenth part of a Macao lottery ticket was found therein. At the time this search was
made neither of the owners of the store was present. Tan Bo, the managing partner, testified that this lottery ticket was sent to him by a friend in
Amoy and that when he received it he put it in an envelope and placed it in the drawer and that his partner, Marcelo Jose, had never seen it. The
appellant, Marcelo Jose, testified that, although he is a member of the mercantile firm of Marcelo Jose & Co., he knew nothing of the existence of
the lottery ticket until he saw it in the court of the justice of the peace, and that he lived in Manila and went to Olongapo only when the business
required his presence.
Section 3 of Act No. 1523 provides that it shall be unlawful for any person to sell, give away, use or have possession of, with intent to sell, give away
or use, any lottery ticket. This court has held that the animus possidendi must be proved in opium cases where the prohibited drug was found on
the premises of the accused, and the same rule is applicable to the case at bar. In United States v. Tin Masa (17 Phil. Rep., 463), we held, quoting
from the syllabus, that:jgc:chanrobles.com.ph
"It is a general rule that, when any of the prohibited drugs, enumerated in section 31 of the Opium Law, are found upon the premises occupied by a
person accused of using the same, there can be no conviction under said section unless it affirmatively appears that he knowingly had the
prohibited article on the premises, or that the animus possidendi in fact existed together with his alleged apparent possession or control of such
article. But direct proof of facts of this nature, in a criminal proceeding, is rarely forthcoming, except in cases of confession, and their existence may
and usually must be inferred from the varying circumstances in each particular case. When a full, satisfactory, and sufficient explanation of the
presence of a prohibited drug on the premises at the time of the seizure is given, which is entirely consistent with the allegation of the defendant
to the effect that he did not have the same in his possession, there can be no conviction and the accused must be acquitted."cralaw virtua1aw
library
The testimony of both this appellant and Tan Bo stands uncontradicted and the Government did not attempt to impeach the credibility of these
witnesses. We therefore agree with the Attorney-General that the prosecution failed to establish the guilt of the appellant of the crime charged
beyond a reasonable doubt.
For the foregoing reasons, the judgment appealed from is reversed and the appellant is acquitted, with costs de officio. So ordered.
Torres, Johnson, and Araullo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5115 November 29, 1909
THE UNITED STATES, plaintiff-appellee,
vs.
MANUEL SAMANIEGO and JUANA BENEDICTO DE PEREZ, defendants-appellants.
MORELAND, J.:
On the 20th day of December, 1907, the following information was presented to the Court of First Instance of the city of Manila against the
defendants in this case:
That on or about 25th day of November, 1907, in the city of Manila, Philippine Islands, the said Manuel Samaniego did then and there
willfully, unlawfully, and feloniously lie with and have the sexual intercourse with the said accused, Juana Benedicto de Perez, who was
then and there, as the said accused, a married woman and the lawfully wedded wife of Jose Perez, being then and there a married
woman and the lawfully wedded wife of the said Jose Perez Siguenza, did then and there willfully, unlawfully, and feloniously lie with and
have sexual intercourse with the said accused, Manuel Samaniego.
The defendants were arrested under the said information and were confined in Bilibid, the said Samaniego on the 21st day of December, 1907, and
the said Juana Benedicto de Perez on the 26th of the same month. after the arrest of the said defendants, Juana Benedicto de Perez, at the
instance of the prosecuting attorney, was examined by three physicians for the purpose of determining her mental condition. On the 27th day of
December, 1907, the doctors made their report to the Court of First Instance, expressing the opinion that the said Juana Benedicto de Perez was
mentally deranged. On the 7th day of January, 1908, the defendants were tried on the charge of adultery, as presented in said information, and,
after the introduction of the proofs attorney and the trial court believed that the evidence was insufficient to warrant the conviction of either of
the defendants, and they were both accordingly acquitted of that charge. In the judgment acquitting the defendants the court included permission
to the prosecuting attorney to file against either or both of the said defendants a new information charging them with the crime defined in article
441 of the Penal Code. On the 8th day of January, 1908, pursuant to such permission, the prosecuting attorney presented against both of the
defendants an information charging them with the crime mentioned in said article, as follows:
That on and for many weeks prior to the 27th day of November, 1907, in the city of Manila, Philippine Islands. the said Juana Juana
Benedicto De Perez was a married woman, and that the said Manuel Samaniego knew that she was married and united in the bonds of
matrimony with and was the legitimate consort of Jose Perez Siguenza; that during the period of time above expressed the said Manuel
Samaniego and Juana Benedicto de Perez, willfully, illegally, and criminally and scandalously, without having any matrimonial tie between
them, habitually appeared together in public places and frequented together places of recreation, suspicious places, vacant houses, and
houses of bad repute, in the daytime as well as in the nighttime; and lewdly and indecently went to the bed together in the house of the
husband of the said Juana Benedicto de Perez during the late hours of the night, dressed only in their night clothes, and in decorously,
indecently, and immodestly embraced each other and caressed each other in the presence of the family, children, and servants of the
said husband of Juana Benedicto de Perez; all with public scandal and with scandal to the community, and with shame and humiliation to
the husband and family of the said Juana Benedicto de Perez.
After the presentation of this information, it appearing that the proofs under the charge therein contained would be the same as were those under
the charge in the information first herein set forth, the prosecuting attorney and the attorneys for the defendants agreed to submit and did submit
the case to the court for final determination upon the proofs already taken in the trial on the charge of February, 1908, the trial court rendered a
decision in which he found the defendants guilty of the crime charged, condemning the defendant Samaniego to the penalty of arresto mayor in its
maximum degree and the ordering the defendant Juana Benedicto de Perez confined in an asylum for the insane until the further order of the
court. On the same day the defendants excepted to said decision and made a motion for a new trial. On the 12th day of February said court, upon
its own motion, and, so far as appears of record, without notice to or consent of the defendants or their attorneys made an order reopening said
case "for the purpose only, " as expressed in the order, " of receiving evidence as to the publicity of the acts charged in the complaint." On the 15th
day of April, following, additional evidence was taken in the case and used by the court as the basis for a further judgment in the action. This was
done over the objections and exception of defendant's attorneys. On the 18th day of April the courts rendered a decision affirming the judgment
rendered by him on the 5th day of February in the same case. In the same decision he denied defendant's motion for a new trial.
The witnesses for the prosecution during the trial of the defendants on the charge made in the first information, viz, that of adultery, were Jose
Perez, the husband of Juana Benedicto de Perez, three of his children, and his cochero. The husband testified that Juana, after having lived with him
for more than twenty years, and having borne him more than five children, expressed the desire to separate from him on account of the physical
abuse and ill treatment which she had received and was receiving at his hands. He testified further that he himself desired to terminate his marital
relations with her and that he wanted a divorce; and, as a preliminary step to that end, we obtained her arrest at the hands of the police, who, at
his request, conducted her in a patrol wagon publicly through the streets of the city of Manila to an asylum for the insane, where she was detained
and imprisoned against her will. He declared further that the reason why he thus humiliated and disgraced her and deprived her of her liberty was
his ardent desire to save her soul; that, in ordering her arrest and reclusion, he was acting under the advice and counsel of various lawyers and
doctors. He further testified that, after her arrest, she many times implored him to give her back her liberty and permit her to return to her family;
and that, during one of such supplications, she admitted to him that the defendant Samaniego was her friend, but, at the same time, denied that
he had ever taken advantage of that friendship in any way whatever.
In attempting to prove the adultery alleged in the information, the prosecution presented as witnesses the persons above mentioned, viz Caridad
Perez, daughter of the defendant Juana; Rafael Perez, a student of medicine, 18 years of age, son of the defendant Juana; Concepcion Perez, 12
years of age, daughter of the defendant Juana; together with the cochero of the family, all of whom lived with the accused, Juana, and her husband
at No. 257 Calle Nozaleda, Manila.
According to the testimony of these witnesses, the kitchen and the toilet of the house, no,. 257 Nozalada, are situated on the ground floor. Here
slept the cochero in a bed called by the family a bench. This was the only bed in the lower part of the house which could possibly be used for any
purpose.lawphil.net
On the night if the 6th of November, 1907, the accused, Juana Benedicto de Perez, accompanied by her daughters, attended a dance given by a
friend. The other accused, Samaniego, was also present. Juana and her daughters returned home late at night. There were then present in the
house the accused, Juana Benedicto de Perez; her three daughters, Caridad, Rosario, and Conchita, and a friend of Conchita; her son Rafael; a
younger son, Manolo; and the cochero. When the mother and the daughters who and attended the dance with her were preparing for bed,
Conchita discovered that there was a stranger in the lower part of the house and by her cries brought the household to the spot. She declares in
her testimony that when she first saw the stranger he was near the cochero's bed and while she was watching the movements of the stranger, her
mother went below and appeared to be talking with him; that not for a moment did she lose sight of her mother during all the occurrence.
The cochero testified that the stranger was Samaniego and that he came first to the cochero's bed and talked with him a while, but afterwards
the cochero went to asleep, and later, on hearing the cries of Conchita, he saw Samaniego trying to conceal himself in the kitchen and also
observed that the caused, Juana Benedicto de Perez, was going up and down the stairs.
The married daughter, Caridad, who, it appears, was not at the dance, testified that, when Conchita informed the family that a stranger was in the
lower part of the house, she awoke her brother Rafael, who accompanied her below, where they found the defendant Samaniego, dressed only in
his drawers; that she gave him a blow in the face and ordered him immediately to quit the house; that he asked her pardon and requested
permission to put on his clothes; that permission to do so was refused and she and her brother ejected him from the house by force and later
the cochero handed him his clothes over the wall.
Caridad also testified that Samaniego was once at the house and talked with her mother though the window from the street, and on that occasion
her mother delivered to him a pawn ticket; that once when she and her mother were in a carromata on the streets the defendant approached
them and spoke to her mother. The testimony of Rafael shows that one morning, as he was returning from the hospital in Quiapo, he saw the
defendant Samaniego on foot near the carromata of his mother in the Botanical Garden talking to her.
Luisa Avesilla testified that the accused, Juana Benedicto de Perez, pais the board of Samaniego for three months in a restaurant where she was
cashier, and that on one occasion Juana ate with Samaniego in the restaurant. On that occasion she was accompanied by her grandson.
The cochero testified that he frequently had as passengers in the carromata the two defendants; that on one occasion he had waited for them
while they went to a house in Calle Cervantes, and on another occasion they had gone into a house on Calle Malacañang, the witness supposing
that the house was unoccupied because the accused, Juana, had told him that she was looking for a house to rent; that the witness at no time
observed anything improper in the conduct or deportment of the two defendants. There is no proof whatever that these were places of bad repute
or that any of them were unoccupied.
Upon the proofs above stated, which are all of the proofs adduced in the trial on the charge of adultery and are the same proofs upon which the
defendants were acquitted of that charge, the prosecuting attorney recommended that the defendants be convicted of the crime defined in article
441 of the Penal Code, of which they stood charged, and the court thereupon convicted them thereof.
The acts complained of lack many of the elements essential to bring them within the purview of the article of the Penal Code invoked by the
prosecution. Every act that was in anywise public fails entirely of those qualities which offend modesty and good morals by "grievous scandal or
enormity." The occurrence at the residence on the night of the 6th of November did not have that publicity which is required by the article of the
Penal Code referred to (U. S. vs. Catajay, 6 Phil. Rep., 398; supreme court of Spain, April 13, 1885, December 14, 1903, and January 27, 1908; Viada,
vol. 3, p. 130.)
The evidence introduced on the reopening adds nothing to the case already made by the prosecution. The case was reopened for a particular
purpose and the evidence to be introduced, if any, was restricted to a particular condition, viz, the "publicity or non-publicity of the acts charged in
the complaint." On the reopening, evidence was presented by the prosecution in relation to the alleged occurrence between the defendants in
Plaza Palacio. Concerning this incident testimony had already been given on the trial by the witness Rafael Perez. Testimony was also given on the
reopening by the same witness as to an occurrence between the defendants one morning in the Botanical Garden. In relation to this same event he
had already given this testimony on the trial. His evidence as to these two events given on the reopening of the case is wholly inconsistent with, if
not absolutely contradictory of, his testimony in relation to the same events given on the trial. Such testimony can have no weight.
The other testimony given on the reopening by this witness and the testimony of the witness Amadeo Pacheco can have no bearing or weight in
the decision of this case because such testimony relates to the acts and relations between the defendants which are not "charged in the complaint"
and concerning which no evidence whatever had been offered on the trial.
In the judgment of this court the evidence fails to show the defendants guilty of the crime charged.
The judgments of conviction of the trial court is, therefore, reversed, the defendants acquitted and their discharge from custody ordered.
Arellano, C. J., Torres, Johnson and Carson, JJ., concur.
FIRST DIVISION
[G.R. No. 2785. August 23, 1906. ]
THE UNITED STATES, Plaintiff-Appellee, v. JOSE CATAJAY, Defendant-Appellant.
DECISION
CARSON, J. :
The trial court found be accused guilty of the crime of public scandal in violation of the provisions of article 441 of Penal Code.
It appears, however, that the acts complained of were committed at night, in a private house, and at a time when no one was present except the
accused, the mistress of the house, and one servant, and we are of opinion that these circumstances do not constitute that degree of publicity
which is an essential element of the crime defined and penalized in article 441 of the Penal Code. (Decision of the supreme court of Spain, April 13,
1885.)
The correct construction of this article well stated by Viada in his commentary on article 457 of the Penal Code of Spain, which exactly corresponds
with the article in question.
"Constituyen el delito acqui previsto todos aquellos actos contrarios al pudor y a las buenas costumbres que, por su publicidad, han podido ser
objeto de escandalo publico para las personas que accidentalmente los han presenciado. Aunque no lo diga el articulo, es evidente que es
condicion precisa para que exista este delito que la ofensa al pudor y a las buenas costumbre sea publica: si la ofensa no tuviese este caracter, es
claro que ya no habria de producir el grave escandalo ni la transcendencia que requiere el articulo, y por lo tanto, ya no quedaria sujeta a la sancion
del mismo, sino a la mas benigna del No. 2 del articulo 586, que castiga como reos de una simple falta contra el orden publicio, con la pena de
arresto de uno a diez dias y multa de 5 a 50 pesetas, a los que con cualquier clase de actos ofendieren la moral y las buenas costumbre sin cometer
delito. Cuando el hecho, pues, ofensivo al pudor se cometa publicamente, debera apreciarse como delito, puesto que esta misma publicidad es la
que produce el grave escandalo que en el se castiga: en otro caso, la disposicion citada del articulo 586 es la que debera aplicarse." (Viada
comentarios al Codigo Penal de 1870, cuarta edicion, tomo 3, pag. 130.)
There can be no doubt that the accused committed the offense defined and penalized in No. 2 of the article 571 of the Penal Code, which
corresponds with the above-mentioned number 2 of article 586 of the Penal Code of Spain, and provides that a penalty of from one of ten days’
arrest and a fine of from 15 to 125 pesetas shall be imposed upon —
"2. Those who, by exhibiting prints or engravings, or by means of other acts, shall offend against good morals and custom without committing a
crime."cralaw virtua1aw library
Since this is a lesser offense that the one charged in the complaint, and is included therein, we find him guilt of a violation of the provisions of the
said article and, reversing the sentence of the trial court, we impose upon the accused, Jose Catajay, the penalty of the ten days’ imprisonment
(arresto), and the payment of a fine of 125 pesetas, and the costs of the trial in both instances. After the expiration of ten days from the date of
final judgment let the cause be remanded to the lower court for proper procedure. So ordered.
Arellano, C.J., Mapa, Willard, and Tracey, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20569
October 29, 1923
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
J. J. KOTTINGER, defendant-appellant.
MALCOLM, J.:
The question to be here decided is whether or not pictures portraying the inhabitants of the country in native dress and as they appear and can be
seen in the regions in which they live, are absence or indecent. Surprising as it may seem, the question is one of first impression not alone in the
Philippine Islands, but in the United States, Great Britain, and elsewhere. This will explain why a case which otherwise would be heard and voted in
Division has been submitted to the court in banc for decision.
On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply Co. at 110 Escolta, Manila. He found and
confiscated the post-cards which subsequently were used as evidence against J. J. Kottinger, the manager of the company.
Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of Manila. The information filed in court charged
him with having kept for sale in the store of the Camera Supply Co., obscene and indecedent pictures, in violation of section 12 of Act No. 277. To
this information, the defendant interposed a demurrer based upon the ground that the facts alleged therein did not constitute an offense and were
not contrary to law; but trial court overruled the demurrer and the defendant duly excepted thereto. Following the presentation of evidence by the
Government and the defense, judgment was rendered finding the defendant guilty of the offense charged and sentencing him to pay a fine of P50
with subsidiary imprisonment in case of insolvency, and the costs.
The five errors assigned by defendant-appellant in this court divide themselves into two general issues. The first point sustained by counsel for the
appellant is in nature a technical objection, growing out of the defendant's demurrer. The second point, in reality the decesive issue, is as
suggested in the beginning of the decision. We will take upon the assignments of errors as thus classified in order.
Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene or indecent publications misdemeanors. Said
section 12 which, it is contended by the Government, has here been violated, and which, appellant argues, does not apply to the information and
the facts, reads as follow:
Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale, distributes, or exhibits any obscene or indecent
writing, paper, book, or other matter, or who designs, copies, draws, engraves, paints, or otherwise prepares any obscene picture or
print, or who moulds, cuts, casts, or otherwise makes any obscene or indecent figure, or who writes, composes, or prints any notice or
advertisement of any such writing, paper, book, print, or figure shall be guilty of a misdemeanor and punished by a fine of not exceeding
one thousand dollars or by imprisonment not exceeding one year, or both.
Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is intended to bear out his thesis, first, that section
12 does not prohibit the taking, selling, and publishing of alleged obscene and indecent pictures and prints, and second, that the information in this
case charges no offense prohibited by section 12. Recall, however, that the law provides punishment, among other things, for any person who
keeps for sale or exhibits any absence or indecent writing, paper, book, or other matter, and that the information charges the defendant, among
other things, with having wilfully and feloniously kept for sale, distribution, or exhibition, obscene and indecent pictures.
The phrase in the law "or other matter", was apparently added as a sort of "catch-all." While limited to that which is of the same kind as its
antecedent, it is intended to cover kindred subjects. The rule of ejusdem generis invoked by counsel is by no means a rule of universal application
and should be made to carry out, not to defeat, the legislative intent. Even if the phrase "or other matter" be cobstrued to mean "or other matter
of like kind," pictures and postcards are not so far unrelated to writings, papers, and books, as not to be covered by the general words
(Commonwealth vs. Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508).
The line of argumentation is more refined that practical. Once conceded that section 12 of Act No. 277 does not cover the present case, there yet
remain for application article 571, No. 2, of the penal code, and section 730 of the Revised Ordinances of the City of Manila. The section of the
Revised Ordinances cited is most specific when it provides in part that no person shall "exhibit, circulate, distribute, sell, offer or expose for sale, or
give or deliver to another, or cause the same to be done, any lewd, indecent, or absence book, picture, pamphlet, card, print, paper, writing,
mould, cast, figure, or any other thing."
While admittedly the information is lacking in precision and while the content of section 12 of the Libel Law is not as inclusive as it might be, we yet
conclude that the information is not fatally defective, and that said section 12 covers the alleged facts.
We come now to decide the main issue. We repeat that our own researches have confirmed the statement of counsel that no one parrallel case be
found. We must perforce reason from the general to the specific and from universal principle to actual fact.
The pictures which it is argued offend against the law on account of being obscene and indecent, disclose six different postures of non-Christian
inhabitants of the Philippines. Exhibit A carries the legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries the
legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle, Philippines. Greetings from the Philippines." Exhibit A-3 has the
legend "Igorot Girl, Rice Field Costume." Exhibit A-4 has the legend "Kalinga Girls, Philippines. Exhibit A-5 has the legend "Moros Philippines."
The prosecution produced no evidence proving the postcards obscene and indecent because it thought the post-cards themselves the best
evidence of that fact. The fiscal admitted in open court "that those pictures represented the natives (non-Christians) in their native dress." The
defendant, on the other hand, attempted to show that the pictures as true to life. Dr. H. Otley Beyer, Professor in the University of the Philippines,
corroborated by other witnesses, testified from his studies in various parts of the Islands, such as the Mountain Province, Abra, Palawan, and
Mindanao and Sulu, that none of the pictures represented poses which he had not observed on various occasions, and that the costumes worn by
the people in the pictures are the true costumes regularly worn by them. Are such pictures obscene or indecent?
The word "obscene" ands the term "obscenity" may be defined as meaning something offensive to chastify, decency, or delicacy. "Indeceny" is an
act against behavior and a just delicacy. The test ordinarily followed by the courts in determining whether a particular publication or other thing is
obscene within the meaning of the statutes, is whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall. Another test of
obscenity is that which shocks the ordinary and common sense of men as an indecency, (29 Cyc., 1315; 8 R. C. L., 312.)
The Philippine statute does not attempt to define obscene or indecent pictures, writings, papers, or books. But the words "obscene or indecent"
are themselves descriptive. They are words in common used and every person of average intelligence understand their meaning. Indeed, beyond
the evidence furnished by the pictures themselves, there is but little scope for proof bearing on the issue of obscenity or indecency. Whether a
picture is obscene or indecent must depend upon the circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep., 635.)
Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the use of the mails for obscene matter and prohibiting
the importation into the Philippine Islands of articles, etc., of obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36 stat. at L., 135; 7 Fed.
Stat. Ann., 1194, sec. 3[b].)
"Obscene," as used in the Federal Statutes making it a criminal offense to place in the mails any obscene, lewd, or lascivious publication, according
to the united States Supreme Court and lesser Federal courts, signifies that form of immorality which has relation to sexual impurity, and has the
same meaning as is given at common law in prosecutions for obscene libel. (Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs. Males [1892], 51
Fed., 41; 6 Words and Phrases, 4888, 4889.)
The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for despositing an obscene publication in a United States
post-office in violator of the Postal Law. Judge Philips said:
The statute does not undertake to define the meaning of the terms "obscene," etc., further than may be implied by the succeeding phrase, "or
other publication of an indecent character." On the well-organized canon of construction these words are presumed to have been employed by the
law-maker in their ordinary acceptation and use.
As they cannot be said to have acquired any technical significance as applied to some particular matter, calling, or profession, but are
terms of popular use, the court might perhaps with propriety leave their import to the presumed intelligence of the jury. A standard
dictionary says that "obscene" mean "offensive to chastity and decency; expressing or presenting to the mind or view something which
delicacy, purity, and decency forbid to be exposed." This mere dictionary definition may be extended or amplified by the courts in actual
practice, preserving, however, its essential though, and having always due regard to the popular and proper sense in which the legislature
employed the term. Chief Justice Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said: "The test of obscenity is this: Where the tendency
of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose
hands a publication of this sort may fall;" and where "it who suggest to the minds of the young of either sex, or even to persons of more
advanced years, thoughts of the most impure and libidinous character." So, also, it has been held that a book is obscene which is
offensive to decency or chastity, which is immodest, which is indelicate, impure, causing lewd thoughts of an immoral tendency." U. S. vs.
Bennet, 16 Blatchf., 338. Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732, observed:
"The word "obscene" ordinarily means something which is offensive to chastity; something that is foul or filthy, and for that
reason is offensive to pure-minded persons. That is the meaning of the word in the concrete; but when used, as in the statute,
to describe the character of a book, pamphlet, or paper, it means containing immodest and indecent matter, the reading
whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall whose
minds are open to such immoral influences."
Laws of this character are made for society in the aggregate, and not in particular. So, while there may be individuals and societies of men
and women of peculiar motions are idiosyncrasies, whose moral sense would neither be depraved nor offended by the publication now
under consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity
or indecency is to be tested. Rather is the test, what is the judgment of the aggregate sense of the community reached by it? What is its
probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and
women, young boys and girls, — the family, which is the common nursery of mankind, the foundation rock upon which the state
reposes?
. . . To the pure all things are pure, is too poetical for the actualities of practical life. There is in the popular conception and heart such a
thing as modesty. It was born in the Garden of Eden. After Adam and Eve ate of the fruit of the tree of knowledge they passed from the
condition of perfectibility which some people nowadays aspire to, and, their eyes being opened, they discerned that there was both good
and evil; "and they knew that they were naked; and they sewed fig leaves together, and made themselves aprons." From that day to this
civilized man has carried with him the sense of shame, — the feeling that there were some things on which the eye — the mind — should
not look; and where men and women become so depraved by the use, or so insensate from perverted education, that they will not evil
their eyes, nor hold their tongues, the government should perform the office for them in protection of the social compact and the body
politic.
As above intimated, the Federal statue prohibits the importation or shipment into the Philippine Islands of the following: "Articles, books,
pamphlets, printed matter, manuscripts, typewritten matter, paintings, illustrations, figures or objects of obscene or indecent character or
subversive of public order." There are, however, in the record, copies of reputable magazines which circulate freely thruout the United States and
other countries, and which are admitted into Philippines without question, containing illustrations identical in nature to those forming the basis of
the prosecution at bar. Publications of the Philippine Government have also been offered in evidence such as Barton's "Ifugao Law," the "Philippine
Journal of Science" for October, 1906, and the Reports of the Philippine Commission for 1903, 1912, and 1913, in which are found illustrations
either exactly the same or nearly akin to those which are now impugned.
It appears therefore that a national standard has been set up by the Congress of the United States. Tested by that standard, it would be extremely
doubtful if the pictures here challenged would be held obscene or indecent by any state of Federal court. It would be particularly unwise to
sanction a different type of censorship in the Philippines that in the United States, or for that matter in the rest of the world.
The pictures in question merely depict persons as they actually live, without attempted presentation of persons in unusual postures or dress. The
aggregate judgment of the Philippine community, the moral sense of all the people in the Philippines, would not be shocked by photographs of this
type. We are convicted that the post-card pictures in this case cannot be characterized as offensive to chastity, or foul, or filthy.
We readily understand the laudable motives which moved the Government to initiate this prosecution. We fully appreciate the sentiments of
colleagues who take a different view of the case. We would be the last to offend the sensibilities of the Filipino people and the sanction anything
which would hold them up to ridicule in the eyes of mankind. But we emphasize that we are not deciding a question in political theory or in social
ethics. We are dealing with a legal question predicated on a legal fact, and on this question and fact, we reach the conclusion that there has not
been proved a violation of section 12 of the Libel Law. When other cases predicated on other states of facts are brought to our attention, we will
decide them as they arise.
We seem to recall the statement of counsel that the proprietor of the photographic concern whom he represents would on his own initiative place
suitable and explicit inscriptions on the pictures so that no one may be misled as to them. Indeed, he might even go further and out of
consideration for the natural sensibilities of his customers, withdraw from sale certain pictures which can be pointed out to him.
We hold that pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live,
are not obscene or indecent within the meaning of the Libel Law. Disagreeing therefore with the appellant on his technical argument but agreeing
with him on his main contention, it becomes our duty to order the dismissal of the information. 1awph!l.net
Judgment is reversed, the information is dismissed, and the defendant-appellant is acquitted with all costs de oficio. So ordered.
Johnson, Street, Avanceña, Villamor and Johns, JJ., concur.
Mr. Chief Justice Manuel Araullo was present at the time this case was voted and then voted with Mr. Justice Romualdez. (Sgd.) E. FINLEY JOHNSON.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7491
August 8, 1955
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GO PIN, defendant-appellant.
J. Perez Cardenas and Castaño and Ampil for defendant.
Office of the Solicitor General Querube C. Makalintal and Solicitor Jesus A. Avanceña for appellee.
MONTEMAYOR, J.:
Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the Revised Penal Code for having exhibited in the City of
Manila at the Globe Arcade, a recreation center, a large number of one-real 16-millimeter films about 100 feet in length each, which are allegedly
indecent and/or immoral. At first, he pleaded not guilty of the information but later was allowed by the court to change his plea to that of guilty
which he did. Not content with the plea of guilty the trial court had the films in question projected and were viewed by it in order to evaluate the
same from the standpoint of decency and morality. Thereafter, and considering the plea of guilty entered by the accused, and the fact that after
viewing the films the trial court noted only a slight degree of obscenity, indecency and immorality in them, it sentenced the appellant to 6 months
and 1 day of prision correcciconal and to pay a fine of P300, with subsidiary imprisonment in case of insolvency, and to pay the costs. He is now
appealing from the decision.
Go Pin does not deny his guilt but he claims that under the circumstances surrounding the case, particularly the slight degree of obscenity,
indecency and immorality noted by the court in the films, the prison sentence should be eliminated from the penalty imposed. His counsel brings
to our attention some authorities to the effect that paintings and pictures of women in the nude, including sculptures of that kind are not offensive
because they are made and presented for the sake of art. We agree with counsel for appellant in part. If such pictures, sculptures and paintings are
shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not exactly for art's sake but rather for commercial purposes. In other words, the
supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and
profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who
went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity
and taste, and lust, and for love for excitement, including the youth who because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these pictures.
Before rendering sentence the trial court asked the prosecuting attorney for this recommendation and said official recommendation that
"considering that the accused Go Pin is an alien who is supposed to maintain a high degree of morality while he is in the Philippines", and
"considering that he engaged in a very nefarious trade, which degenerates the moral character of our youth, who are usually the regular customers
of his trade", he recommended that appellant be sentenced to 2 years imprisonment and a fine of P300. Notwithstanding this recommendation,
the trial court as already said, probably considering its opinion that the pictures were not so obscene, indecent and immoral but only slightly so,
gave appellant only 6 months and 1 day of prision correccional in addition to P300 fine.
The penalty imposed by the trial court is within the range provided by Article 201 of the Revised Code. We are satisfied that in imposing the penalty
the trial court made use of its sound discretion, and we find no reason for modifying the said sentence. The Solicitor General in his brief even urges
that we recommend to the proper authorities that deportation proceedings be instituted against appellant as an undesirable alien. The trial court
could have done this but did not do so, believing perhaps that it was warranted. We repeat that we do not feel justified in interfering with the
discretion of the trial court in the imposition of the sentence in this case.
In view of the foregoing, the decision appealed from is affirmed, with costs.
Bengzon, Acting C. J., Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion, and Reyes, J. B. L., JJ.,concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7295
June 28, 1957
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES and JOSE FAJARDO, defendants.
MARINA PADAN Y ALOVA and JOSE FAJARDO, defendants-appellants.
Augusto Revilla for appellant Jose Fajardo.
W. M. Bayhon for appellant Marina Padan y Alova.
Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee.
MONTEMAYOR, J.:
In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme Espinosa, and Ernesto Reyes were charged with a violation of
Article 201 of the Revised Penal Code, said to have been committed as follows:
That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said accused conspiring and confederating
together and mutually helping one another, did then and there willfully, unlawfully and feloniously exhibit or cause to be exhibited inside
a building at the corner of Camba Ext. and Morga Ext., Tondo, this City, immoral scenes and acts, to wit: the said accused Jose Fajador y
Garcia, being then the manager and Ernesto Reyes y Yabut, as ticket collector and or exhibitor, willfully ,unlawfully and feloniously hired
their co-accused Marina Palan y Alova and Cosme Espinosa y Abordo to act as performers or exhibitionists to perform and in fact
performed sexual intercourse in the presence of many spectators, thereby exhibiting or performing highly immoral and indecent acts or
shows thereat.
Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the assistance of her counsel de parte and counsel de oficio, asked
for permission to withdraw her former plea of not guilty, which was granted, and upon rearraignment, she pleaded guilty to the charge. In a
decision dated October 12, 1953, Marina Padan was found guilty as charged and sentenced to six months and one day of prision correccional and a
fine of P200, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, with the accessory penalties
prescribed by the law, and to pay the proportionate costs. After trial of the three remaining accused, they were all found guilty; Cosme Espinosa
and Ernesto Reyes were sentenced each to not less than six months and one day of prision correccional and not more than one year, one month
and eleven days of prision correccional, to pay a fine of P500, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the
principal penalty, and to pay the proportionate costs. Jose Fajardo was sentenced to not less than one year, one month and ten days of prision
correccional and not more than one year eight months and twenty days, also of prision correccional, to pay a fine of P1,000, with subsidiary
imprisonment in case of insolvency, not to exceed one-third of the principal penalty and to pay the proportionate costs. The army steel bed, the
army woolen blanket, the pillow, the ladies' panties, and the men's underwear, described in Exhibit C, were declared confiscated.
The four accused appealed in the decision, the appeal having been sent to us. Appellants Espinosa and Reyes failed to file their briefs within the
period prescribed by law and their appeal was dismissed by resolution of this Court of November 25, 1955, and the decision as to them became
final and executory on January 7, 1956, as appears from the entry of judgment.
Because of her plea of guilty in the lower court, appellant Marina in her appeal do not question her conviction; she merely urges the reduction of
the penalty by eliminating the prison sentence. We do not feel warranted in interfering with the exercise of discretion in this matter, made by the
lower court presided by Judge Magno S. Gatmaitan. According to his decision of October 12, 1953, in imposing the sentence, he already considered
Marina's plea of leniency, and so despite the recommendation of the fiscal that she be fined P600.00 in addition to the prison sentence of six
months and one day, his honor reduced the fine to only P200.
We believe that the penalty imposed fits the crime, considering its seriousness. As far as we know, this is the first time that the courts in this
jurisdiction, at least this Tribunal, have been called upon to take cognizance of an offense against morals and decency of this kind. We have had
occasion to consider offenses like the exhibition of still moving pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and
sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux
vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art.
One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing
but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. We repeat that because of all this, the penalty
imposed by the trial court on Marina, despite her plea of guilty, is neither excessive nor unreasonable.
Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the commission of the offense charged, he in its that he was not
the manager or the person incharge of the show or proceedings on the night of September 13, 1953; that his participation, if he participate at all,
was to play the role of an innocent bystander, but that because of his popularity in the neighborhood, being popularly known as a "siga-siga"
character, he was requested by the spectators to select the man and the woman to engage or indulge in the actual act of coitus before the
spectators; that after making the selection, he did not even care to witness the act but left the scene and returned to it only when he heard a
commotion produced by the raid conducted by the police.
The evidence on his active participation and that he was the manager and one in charge of the show is however ample, even conclusive. We have
carefully examined such evidence, and we are satisfied that they fully support the findings of the trial court. Such facts may be briefly stated as
follows: At the corner of Morga Extension and Camba Extension, Tondo, Manila, was a one story building which judging from the picture exhibited
is nothing but a shed, with a floor space of eight by fifteen meters which was mainly used for playing ping-pong. A ping-pong table must have been
placed in the center and on two sides were built benches in tiers, so that the spectators seated on them could look down and see the game. On
September 13, 1953, however, the building was used for a different purpose. It was to be the scene of what was said to be an exhibition of human
"fighting fish", the actual act of coitus or copulation. It must have been advertised by word of mouth; tickets therefor were sold at P3 each, and the
show was supposed to begin at 8:00 o'clock in the evening. About that time of the night, there was already a crowd around the building, but the
people were not admitted into it until about an hour later, and the show did not begin until about 9:15. The Manila Police Department must have
gotten wind of the affair; it bought tickets and provided several of its members who later attended the show, but in plain clothes, and after the
show conducted a raid and made arrests. At the trial, said policemen testified as to what actually took place inside the building. About two civilians
who attended the affair gave testimony as to what they saw.
The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto Reyes. He also collected tickets. In all, there were
about ninety paying customers, while about sixteen were allowed to enter free, presumably friends of the management. Jose Fajardo y Garcia was
clearly the manager of the show. He was at the door to see to it that the customers either were provided with tickets or paid P3.00 entrance fee.
He even asked them from whom they had bought the tickets. He ordered that an army steel bed be placed at the center of the floor, covered with
an army blanket and provided with a pillow. Once the spectators, about 106 in number, were crowded inside that small building, the show started.
Fajardo evidently to arouse more interest among the customers, asked them to select among two girls presented who was to be one of the
principal actors. By pointing to or holding his hand over the head of each of the two women one after the other, and judging by the shouts of
approval emitted by the spectators, he decided that defendant Marina Padan was the subject of popular approval, and he selected her. After her
selection, the other woman named Concha, left. Without much ado, Fajardo selected Cosme Espinosa to be Marina's partner. Thereafter, Cosme
and Marina proceeded to disrobe while standing around the bed. When completely naked, they turned around to exhibit their bodies to the
spectators. Then they indulged in lascivious acts, consisting of petting, kissing, and touching the private parts of each other. When sufficiently
aroused, they lay on the bed and proceeded to consummate the act of coitus in three different positions which we deem unnecessary to describe.
The four or five witnesses who testified for the Government when asked about their reaction to what they saw, frankly admitted that they were
excited beyond description. Then the police who were among the spectators and who were previously provided with a search warrant made the
raid, arrested the four defendants herein, and took pictures of Marina and Cosme still naked and of the army bed, which pictures were presented
as exhibits during the trial. From all this, there can be no doubt that Jose Fajardo y Garcia contrary to what he claims, was the person in charge of
the show. Besides, as found by the trial court and as shown by some of the tickets collected from the spectators, submitted as exhibits, said tickets
while bearing on one side printed matter regarding an excursion to Balara to be held on August 30, 1953 from 7:00 a.m. to 5:00 p.m., sponsored by
a certain club, on the other side appears the following typewritten form, reading:
P3.00 Admit one
PLEASURE SHOW
Place:
P. Morga Ext. and Camba Ext.
Time :
8:00 o'clock sharp,
and superimposed on the same is the rubber stamped name "Pepe Fajardo," which defendant Fajardo admits to be his name. Considering all the
above circumstances, we agree with the trial court that Jose Fajardo is the most guilty of the four, for he was the one who conducted the show and
presumably derived the most profit or gain from the same.
As regards the penalty imposed by the trial court on appellant Fajardo, we agree with the Solicitor General that the same is correct, except the
minimum thereof which is beyond the legal range, and which should be reduced from one year, one month, and ten days of prision correccional to
only six months of arresto mayor.
With the modification above-mentioned, the decision appealed from by Marina Padan and Jose Fajardo are hereby affirmed, with costs against
both.
Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ.,concur.
THIRD DIVISION
G.R. No. 159751
December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of
Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the Revised Penal Code, as amended by Presidential
Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay
the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and Detection
Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music
Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for
violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered
the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures; and
d. Copies of VHS tapes containing pornographic shows.3
On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced
himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different
magazines, which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully, feloniously,
publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t.,
Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and women
having sexual intercourse[,] lewd photographs of nude men and women in explicating (sic) positions which acts serve no other purpose
but to satisfy the market for lust or pornography to public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4
Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented its
evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the
RTC however denied the demurrer to evidence and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise
denied.
Thereafter, the accused waived their right to present evidence and instead submitted the case for decision. 5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:
WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable
doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as
minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the
crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN TOTO.
Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. 8
Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.
Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. Fernando
contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was
present during the raid and that he was selling the said materials. Moreover, he contends that the appellate court’s reason for convicting him, on a
presumption of continuing ownership shown by an expired mayor’s permit, has no sufficient basis since the prosecution failed to prove his
ownership of the establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so.9
The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner
Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited
materials and liable under the Information. The Solicitor General also maintains that Estorninos was identified by Barangay Chairperson Socorro
Lipana as the store attendant, thus he was likewise liable.10
At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the
prosecution’s evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision.a1 12 The trial court
therefore resolved the case on the basis of prosecution’s evidence against the petitioners.
As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the
public from obscene, immoral and indecent materials must justify the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication,
picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials.13 Necessarily, that the confiscated
materials are obscene must be proved.
Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined obscenity as
something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether the tendency of the
matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or
other article charged as being obscene may fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of men
as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must depend upon the circumstances of the case,
and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of the Revised Penal
Code, laid the tests which did little to clearly draw the fine lines of obscenity.
In People v. Go Pin, the Court said:
If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by
people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art’s
sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so
that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for
the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to
satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of]
excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court therein said
that:
[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art.
One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.21
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary community
standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the
"dominant theme" of the material taken as a "whole" rather than in isolated passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive
definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of
artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what
art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene. 23 Go Pin and Padan y Alova gave too much
latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence
actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual
tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization.25 It seems futile at this point to formulate
a perfect definition of obscenity that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether
to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value.26 But, it would be a serious misreading of Miller to conclude that the
trier of facts has the unbridled discretion in determining what is "patently offensive." 27 No one will be subject to prosecution for the sale or
exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct. 28 Examples included (a)
patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive
representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains clear is that obscenity is
an issue proper for judicial determination and should be treated on a case to case basis and on the judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in ruling that
the confiscated materials are obscene, reasoned as follows:
Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .
Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga, Penthouse,
Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and shown not for the sake of art
but rather for commercial purposes, that is gain and profit as the exclusive consideration in their exhibition. The pictures in the magazine
exhibited indecent and immoral scenes and acts…The exhibition of the sexual act in their magazines is but a clear and unmitigated
obscenity, indecency and an offense to public morals, inspiring…lust and lewdness, exerting a corrupting influence especially on the
youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra
Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive may be innocent, but the performance was revolting and
shocking to good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons interested in art to
satisfy and inspire their artistic tastes but persons who are desirous of satisfying their morbid curiosity, taste and lust and for
[love] of excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves
from the ill and perverting effects of the pictures, the display of such pictures for commercial purposes is a violation of Art. 201.
If those pictures were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed (People vs. Go Pin, 97 Phil 418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are
patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts.31 In this case, petitioners neither
presented contrary evidence nor questioned the trial court’s findings. There is also no showing that the trial court, in finding the materials obscene,
was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene materials?
We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201,
considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article
201 is committed only when there is publicity.32The law does not require that a person be caught in the act of selling, giving away or exhibiting
obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. In the present case, we find
that petitioners are engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner Fernando.33 The mayor’s
permit was under his name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the mayor’s permit dated August 8, 1996,
shows that he is the owner/operator of the store.35 While the mayor’s permit had already expired, it does not negate the fact that Fernando owned
and operated the establishment. It would be absurd to make his failure to renew his business permit and illegal operation a shield from
prosecution of an unlawful act. Furthermore, when he preferred not to present contrary evidence, the things which he possessed were
presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness
Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search
warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold the presumption of regularity in the
performance of his duties. Lastly, this Court accords great respect to and treats with finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In our view, no reversible error was committed by the
appellate court as well as the trial court in finding the herein petitioners guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the Decision of
the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.
SO ORDERED.
Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9878 December 24, 1914
THE UNITED STATES, plaintiff-appellee,
vs.
FRANK TUPASI MOLINA, defendant-appellant.
.
JOHNSON, J.:
On the 6th day of February, 1914, the prosecuting attorney of the Province of Ilocos Sur filed a complaint against the defendant charging him with
the crime of perjury, alleged to have been committed as follows:
The said Frank Tupasi Molina, the above-named defendant, did on September 10, 1912, in the municipality of Tayum of the Province of
Ilocos Sur, P. I., for the purpose of gaining admission, as in fact he did, owing to the deceit he practiced, as will be hereinafter related, to
the examinations for the municipal police service in the Province of Ilocos Sur, which were held in the municipality of Vigan, said
province, on or about January 18, 1913, willfully, unlawfully, and criminally take a false oath by affirming and asserting in an oath that he
knew to be false, in an examination application which he himself filled out and signed, that prior to the said date, to wit, September 10,
1912, he had never been indicted, tried, or sentenced for the violation of any law, ordinance, or regulation in any court, when he knew at
the time he took that oath and signed his examination application, as he knows at the present time, that he had been twice indicted for
disturbing the public peace, and for injurias graves, and sentenced to pay a fine and undergo imprisonment therefor, by the justice of the
peace court of Tayum and the Court of First Instance of Ilocos Sur.1awphil.net
The defendant made the false declaration previously mentioned after he had sworn before Lucas Magno, notary public, authorized by
law to administer oaths, that he would state the truth; and said false declaration made under the oath taken by the defendant, as above
stated, concerned a fact of such importance that without it he would not have been admitted to said examinations prescribed for the
municipal police service. In violation of the law. (Sec. 3, Act No. 1697.)
After hearing the evidence adduced during the trial of the cause, the Honorable Francisco Santamaria, judge, found the defendant guilty of the
crime charged, and sentenced him to be imprisoned for a period of two months and to pay a fine of P100, in case of insolvency to suffer subsidiary
imprisonment in accordance with the provisions of the law, and to pay the costs. The defendant was further sentenced to be disqualified from
holding any public office or from giving testimony in any court in the Philippine Islands until such time as the sentence against him is reversed.
From that sentence the defendant appealed to this court and made the following assignments of error:
1. The trial court erred in holding section 3 of Act No. 1697 to be applicable in this case.
2. The trial court manifestly erred in sentencing the appellant for violation of section 3 of Act No. 1697, when the prosecution did not
present any evidence demonstrating that he had willfully and corruptly sworn or taken an oath.
3. The trial court erred in not sustaining the defense set up by the appellant Tupasi with reference to the construction he placed upon the
fifth question of Exhibit A of the prosecution.
4. The trial court erred also in holding that the words "which he does not believe to be true," used in Act No. 1697, are equivalent to the
term "knowingly," used in section 31 of Act No. 1761.
5. The trial court erred in not acquitting the defendant.
It appears from the record that on the 10th day of September, 1912, the defendant signed a petition to be permitted to take the examination for
the position of municipal policeman. Said petition was signed by the defendant and sworn to by him before a notary public. Said petition contained
a number of questions which the applicant was required to answer. Among other questions we find that No. 5 was as follows:
Have you ever been indicted, tried, or sentenced in any court for violation of any law, ordinance, or regulations, or have you ever been
tried or sentenced for violation of regulations of the Army, Navy, of the Constabulary, in any court martial of the Army or of the
Constabulary, or in any other court?
To said question the defendant answered: "No, sir; I cannot remember any."
During the trial of the cause the prosecuting attorney presented Exhibits B, C, and D.
Exhibit B shows that one Francisco Tupasi and others, on the 8th day of February, 1911, had been arrested by an order of the justice of the peace of
the municipality of Tayum, Province of Ilocos Sur, and charged with disturbing the public peace, were found guilty, and sentenced, on the 20th day
of February, 1911, to be imprisoned for a period of fifteen days, and each to pay a fine of 25 pesetas, and to pay the costs.
Exhibit C shows that Francisco Tupasi, on the 18th day of May, 1911, had been arrested and taken before the justice of the peace of the
municipality of Tayum, Province of Ilocos Sur, charged with the crime of "injurias graves," and was sentenced on the 22d day of May, 1911, to be
imprisoned for a period of fifteen days and to pay a fine of 75pesetas and the costs.
Exhibit D is the certificate of the clerk of the Court of First Instance of the Province of Ilocos Sur and shows that the Honorable Dionisio Chanco, on
the 26th day of April, 1911, in an appealed case for disturbing the public peace, sentenced the said Francisco Tupasi and others to pay a fine of
60 pesetas, in case of insolvency to suffer subsidiary imprisonment, and to pay the costs.
Exhibit A was the sworn petition presented by the defendant for permission to take the examination. Said petition was signed by Frank Tupasi y
Molina. It was shown during the trial of the cause, by the admission of the defendant himself, that he was the same person accused and sentenced
in Exhibits B, C, and D. It was argued that the defendant signed said application in the name of "Frank Tupasi y Molina" when he had theretofore
been known as "Francisco Tupasi," for the purpose of avoiding identity. The defendant said that "Francisco" was the same as "Frank" and that he
had adopted the name of "Frank" instead of "Francisco." The answers to the questions in said application were made in English.
With reference to the first assignment of error, that the lower court committed an error in applying section 3 of Act No. 1697 to the facts in the
present case, it may be said that said article provides that:
Any person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the Philippine Islands
authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration,
deposition or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he
does not believe to be true, is guilty or perjury, and shall be punished, etc.
Act No. 2169 of the Philippine Legislature, which is an Act to provide for the reorganization, government, and inspection of municipal police of the
municipalities or provinces and subprovinces organized under Act No. 83, provides for the reorganization of the municipal police of the
municipalities or provinces and subprovinces organized under Act No. 83.
Said Act further provides that, subject to the approval of the Secretary of Commerce and Police, the Director of Constabulary shall prepare general
regulations for the good government, discipline, and inspection of the municipal police, "compliance wherewith shall be obligatory for all members
of the organization."
Said Act further provides for an examining board for the municipal police. It further provides that, subject to the approval of the Secretary of
Commerce and Police, the Director of Constabulary shall prepare an examination manual, prescribing, at the same time, suitable rules for the
conduct of the examination.
Said Act (No. 2169) also provides for the time and place for holding said examinations.
Section 9 of said Act provides that: "To be eligible for examination, a candidate shall have the following requirements: . . . (6) Have no criminal
record."
In accordance with the requirements of said law, the Director of Constabulary prepared an examination manual, prescribing at the same time rules
for conducting examinations, which examination manual was approved by the Secretary of Commerce and Police, and thereby was given the force
of law. Said manual prescribed a form in blank, known as "Municipal Form No. 11," which form each applicant was required to fill, in order to be
permitted to take said examination. Said application required the applicant to swear to the facts stated therein. We have, therefore, a law which
authorizes the administration of an oath in the present case.
Of course, the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and
for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long,
however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid. A violation of a regulation prescribed by an
executive officer of the Government in conformity with and based upon a statute authorizing such regulation, constitutes an offense and renders
the offender liable to punishment in accordance with the provisions of law. (United States vs. Bailey, 9 Pet., 238, 252, 254, 256; Caha vs. United
States, 152 U. S., 211, 218; United States vs. Eaton, 144 U. S., 677.)
In the very nature of things in many cases it becomes impracticable for the legislative department of the Government to provide general
regulations for the various and varying details for the management of a particular department of the Government. It therefore becomes
convenient for the legislative department of the Government, by law, in a most general way, to provide for the conduct, control, and management
of the work of the particular department of the Government; to authorize certain persons, in charge of the management, control, and direction of
the particular department, to adopt certain rules and regulations providing for the detail of the management and control of such department. Such
regulations have uniformly been held to have the force of law, whenever they are found to be in consonance and in harmony with the general
purposes and objects of the law. Many illustrations might be given. For instance, the Civil Service Board is given authority to examine applicants for
various positions within the Government service. The law generally provides the conditions in a most general way, authorizing the chief of such
Bureau to provide rules and regulations for the management of the conduct of examinations, etc. The law provides that the Collector of Customs
shall examine persons who become applicant to act as captains of ships for the coastwise trade, providing at the same time that the Collector of
Customs shall establish rules and regulations for such examinations. Such regulations, once established and found to be in conformity with the
general purposes of the law, are just as binding upon all of the parties, as if the regulations had been written in the original law itself. (United
States vs. Grimaud, 220 U. S., 506; Williamson vs. United States, 207 U. S., 425; United States vs. United Verde Copper Co., 196 U. S.,
207.)1awphil.net
By reference to Exhibit A, the application made and sworn to by the defendant, we find that the oath was taken before a notary public, a person
qualified to administer an oath, in accordance with the provisions of law.
The defendant, in support of his first assignment of error, argues that the purpose of Act No. 1697 was not intended to cover cases like the present.
He argues that said Act was an Act only authorizing the appointment of commissioners, to make official investigations, fixing their powers, for the
payment of witness fees, and for the punishment of perjury in official investigations. The same question was presented to this court in the case of
United States vs. Concepcion (13 Phil. Rep., 424). In that case the court decided against the contention of the defendant in the present case. It is
true that the title of said Act (No. 1697) does not seem to indicate that said law contained a provision punishing the crime of perjury generally.
Reading the title alone, it would seem to be a law punishing the crime of perjury in particular cases. The law (Act No. 1697) is a general law. It is not
a private or local law. In the United States the constitutions in the different States generally provide that the title of a law shall indicate the general
purpose of the law. There seems to be no provision in the Philippine Islands that the title of a general law shall contain a statement of the subject
matter of the law. Section 5 of the Act of Congress of July 1, 1902, provides:
That no private or local bill which may be enacted into law shall embrace more than one subject, and that subject shall be expressed in
the title of the bill.
We held in the case of United States vs. Concepcion, supra, that said Act of Congress did not apply to general laws, and that said section 3 was a
provision punishing the crime of perjury generally. (U. S. vs. De Chaves, 14 Phil. Rep., 565; U. S. vs. Estraña, 16 Phil. Rep., 520; U. S. vs. Fonseca, 20
Phil. Rep., 191.)
In the case of United States vs. Dumlao (R. G., No. 8721, not reported) this court held the defendant guilty of the crime of perjury, under facts
exactly analogous to those in this case, under the provisions of section 3 of Act No. 1697. We find no reason, either in law or in the argument of the
appellant in the present case, to modify or reverse our conclusions in that case (No. 8721).
With reference to the second assignment of error, the appellant alleged that the lower court committed an error in finding that he had committed
the crime of perjury voluntarily and corruptly. There is nothing in the record which shows that he did not present to the proper authorities Exhibit
A voluntarily. It is difficult to understand, in view of the fact that the defendant had theretofore been convicted of two different offenses and in
one of them by two courts, how he could, within a few months thereafter, make a sworn statement that he "did not have a criminal record," unless
he answered said question No. 5 in the manner indicated in said application for the express purpose of deceiving the authority to which said
application was presented.
With reference to the third assignment of error, it may be said that the language of question No. 5 seems to be perfectly clear. The defendant
admitted that he could read and understand Spanish. It is to be noted that at the very beginning of said application there are three paragraphs
devoted to instructions to the applicant, which he should have read and no doubt did. Said instructions were sufficient to indicate to the defendant
that if there were any questions which he did not fully understand, he should have acquired a full understanding of the same before answering
them. If there was any fault in understanding said question No. 5, it was wholly due to his own negligence.
With reference to the fourth assignment of error, the appellant contends that the lower court committed an error in holding that the phrase
"which he does not believe to be true," found in section 3 of Act No. 1697, is equivalent to the word "knowingly," used in other laws. The lower
court cited the case of U. S. vs. Tin Masa (17 Phil. Rep., 463) in support of his conclusion. Said section 3, in effect, provides that any person who
takes an oath before a competent tribunal, officer or person, in any case in which a law of the Philippine Islands authorizes an oath, that he will
testify, etc., or that any written testimony, declaration, etc., by him subscribed is true, and thereafter willfully and contrary to such oath states or
subscribes any material matter, "which he does not believe to be true," is guilty of perjury. Under said section, three things are necessary, in order
to constitute the crime of perjury:
1. The person must have taken an oath, in a case where the law authorizes an oath, before a competent person, or a person authorized to
administer an oath;
2. That the person who has taken the oath will testify, declare, dispose, or certify truly, or that any written testimony, declaration, deposition or
certificate by him subscribed is true;
3. That he willfully and contrary to such oath states or subscribes any material matter, "which he does not believe to be true."
It is difficult to understand how a person can state, under oath, that a fact is true or subscribe a document, asserting that the same is true, which
he does not believe to be true. If, under his oath, he declares that said facts are true, we must conclude that he believed that they were true. If, as
a matter of fact, they were not true, and he had full knowledge of the fact that they were not true, then his declaration that they were true would
certainly be a sworn statement that a certain fact was true which he did not believe to be true and, therefore, he must have made a false
statement knowingly. Without attempting to show or assert that the phrase "which he does not believe to be true" is equivalent to the word
"knowingly," as the lower court held, we are of the opinion that whoever makes a statement or subscribes a document, under the circumstances
mentioned in said section 3, which is false and which he, at the time he makes the same does not believe to be true, is guilty of the crime of
perjury. In other words, under the circumstances mentioned in said section, if one swears positively that a fact is true, which he does not believe to
be true, and it turns out that it is false, he is guilty of the crime of perjury. No one should swear positively that a fact is true or subscribe a
document asserting that the facts stated therein are true, unless he at least believes that they are true at the time he takes such oath or subscribes
such document. It can scarcely be believed that the defendant in the present case believed that the answer to said question No. 5 was true. He
must have signed or answered said question not only believing that it was not true, but, as a matter of fact, signed the same knowing that the
answer was false.
With reference to the fifth assignment of error, we are of the opinion that the evidence adduced during the trial of the cause clearly shows that the
defendant is guilty of the crime charged and therefore the sentence of the lower court should be and is hereby affirmed with costs.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-8848
November 21, 1913
THE UNITED STATES, plaintiff-appllee,
vs.
WILLIAM C. HART, C. J. MILLER, and SERVILIANO NATIVIDAD, defendants-appellants.
TRENT, J.:
The appellants, Hart, Miller, and Natividad, were arraigned in the Court of First Instance of Pampanga on a charge of vagrancy under the provisions
of Act No. 519, found guilty, and were each sentenced to six months' imprisonment. Hart and Miller were further sentenced to a fine of P200, and
Natividad to a fine of P100. All appealed.
The evidence of the prosecution as to the defendant Hart shows that he pleaded guilty and was convicted on a gambling charge about two or three
weeks before his arrest on the vagrancy charge; that he had been conducting two gambling games, one in his saloon and the other in another
house, for a considerable length of time, the games running every night. The defense showed that Hart and one Dunn operated a hotel and saloon
at Angeles which did a business, according to the bookkeeper, of P96,000 during the nineteen months preceding the trial; that Hart was also the
sole proprietor of a saloon in the barrio of Tacondo; that he raised imported hogs which he sold to the Army garrison at Camp Stotsenberg, which
business netted him during the preceding year about P4,000; that he was authorized to sell several hundred hectares of land owned by one Carrillo
in Tacondo; that he administered, under power of attorney, the same property; and that he furnished a building for and paid the teacher of the
first public school in Tacondo, said school being under Government supervision.
The evidence of the prosecution as to Miller was that he had the reputation of being a gambler; that he pleaded guilty and was fined for
participating in a gambling game about two weeks before his arrest on the present charge of vagrancy; and that he was seen in houses of
prostitution and in a public dance hall in Tacondo on various occasions. The defense showed without contradiction that Miller had been discharged
from the Army about a year previously; that during his term of enlistment he had been made a sergeant; that he received rating as "excellent" on
being discharged; that since his discharge he had been engaged in the tailoring business near Camp Stotsenberg under articles of partnership with
one Burckerd, Miller having contributed P1,000 to the partnership; that the business netted each partner about P300 per month; that Miller
attended to business in an efficient manner every day; and that his work was first class.
The evidence of the prosecution as to Natividad was that he had gambled nearly every night for a considerable time prior to his arrest on the
charge of vagrancy, in the saloon of one Raymundo, as well as in Hart's saloon; that Natividad sometimes acted as banker; and that he had pleaded
guilty to a charge of gambling and had been sentenced to pay a fine therefor about two weeks before his arrest on the vagrancy charge. The
defense showed that Natividad was a tailor, married, and had a house of his own; that he made good clothes, and earned from P80 to P100 per
month, which was sufficient to support his family.
From this evidence it will be noted that each of the defendants was earning a living at a lawful trade or business, quite sufficient to support himself
in comfort, and that the evidence which the prosecution must rely upon for a conviction consists of their having spent their evenings in regularly
licensed saloons, participating in gambling games which are expressly made unlawful by the Gambling Act, No. 1757, and that Miller frequented a
dance hall and houses of prostitution.
Section 1 of Act No. 519 is divided into seven clauses, separated by semicolons. Each clause enumerates a certain class of persons who, within the
meaning of this statute, are to be considered as vagrants. For the purposes of this discussion, we quote this section below, and number each of
these seven clauses.
(1) Every person having no apparent means of subsistence, who has the physical ability to work, and who neglects to apply himself or
herself to some lawful calling; (2) every person found loitering about saloons or dram shops or gambling houses, or tramping or straying
through the country without visible means of support; (3) every person known to be a pickpocket, thief, burglar, ladrone, either by his
own confession or by his having been convicted of either of said offenses, and having no visible or lawful means of support when found
loitering about any gambling house, cockpit, or in any outlying barrio of a pueblo; (4) every idle or dissolute person or associate of known
thieves or ladrones who wanders about the country at unusual hours of the night; (5) every idle peron who lodges in any barn, shed,
outhouse, vessel, or place other than such as is kept for lodging purposes, without the permission of the owner or person entitled to the
possession thereof; (6) every lewd or dissolute person who lives in and about houses of ill fame; (7) every common prostitute and
common drunkard, is a vagrant.
It is insisted by the Attorney-General that as visible means of support would not be a bar to a conviction under any one of the last four clauses of
this act, it was not the intention of the Legislature to limit the crime of vagrancy to those having no visible means of support. Relying upon the
second clause to sustain the guilt of the defendants, the Attorney-General then proceeds to argue that "visible means of support" as used in that
clause does not apply to "every person found loitering about saloons or dram shops or gambling houses," but is confined entirely to "or tramping
or straying through the country." It is insisted that had it been intended for "without visible means of support" to qualify the first part of the clause,
either the comma after gambling houses would have been ommitted, or else a comma after country would have been inserted.
When the meaning of a legislative enactment is in question, it is the duty of the courts to ascertain, if possible, the true legislative intention, and
adopt that construction of the statute which will give it effect. The construction finally adopted should be based upon something more substantial
than the mere punctuation found in the printed Act. If the punctuation of the statute gives it a meaning which is reasonable and in apparent accord
with the legislative will, it may be used as an additional argument for adopting the literal meaning of the words of the statute as thus punctuated.
But an argument based upon punctuation alone is not conclusive, and the courts will not hesitate to change the punctuation when necessary, to
give to the Act the effect intended by the Legislature, disregarding superfluous or incorrect punctuation marks, and inserting others where
necessary.
The Attorney-General has based his argument upon the proposition that neither visible means of support nor a lawful calling is a sufficient defense
under the last four paragraphs of the section; hence, not being universally a defense to a charge of vagrancy, they should not be allowed except
where the Legislature has so provided. He then proceeds to show, by a "mere grammatical criticism" of the second paragraph, that the Legislature
did not intend to allow visible means of support or a lawful calling to block a prosecution for vagrancy founded on the charge that the defendant
was found loitering around saloons, dram shops, and gambling houses.
A most important step in reasoning, necessary to make it sound, is to ascertain the consequences flowing from such a construction of the law.
What is loitering? The dictionaries say it is idling or wasting one's time. The time spent in saloons, dram shops, and gambling houses is seldom
anything but that. So that under the proposed construction, practically all who frequent such places commit a crime in so doing, for which they are
liable to punishment under the Vagrancy Law. We cannot believe that it was the intention of the Legislature to penalize what, in the case of saloons
and dram shops, is under the law's protection. If it be urged that what is true of saloons and dram shops is not true of gambling houses in this
respect, we encounter the wording of the law, which makes no distinction whatever between loitering around saloons and dram shops, and
loitering around gambling houses.
The offense of vagrancy as defined in Act No. 519 is the Anglo-Saxon method of dealing with the habitually idle and harmful parasites of society.
While the statutes of the various States of the American Union differ greatly as to the classification of such persons, their scope is substantially the
same. Of those statutes we have had an opportunity to examine, but two or three contain a provision similar to the second paragraph of Act No.
519. (Mo. Ann. Stat., sec. 2228; N. D. Rev. Codes, sec. 8952; N. M. Comp. Laws 1897, sec. 1314.) That the absence of visible means of support or a
lawful calling is necessary under these statutes to a conviction for loitering around saloons, dram shops, and gambling houses is not even negatived
by the punctuation employed. In the State of Tennessee, however, we find an exact counterpart for paragraph 2 of section 1 of our own Act (Code
of Tenn., sec. 3023), with the same punctuation:lawph!1.net
. . . or of any person to be found loitering about saloons or dram shops, gambling houses, or houses of ill fame, or tramping or strolling
through the country without any visible means of support.
A further thought suggest itself in connection with the punctuation of the paragraph in question. The section, as stated above, is divided into seven
clauses, separated by semicolons. To say that two classes of vagrants are defined in paragraph 2, as to one of which visible means of support or a
lawful calling is not a good defense, and as to the other of which such a defense is sufficient, would imply a lack of logical classification on the part
of the legislature of the various classes of vagrants. This we are not inclined to do.
In the case at bar, all three of the defendants were earning a living by legitimate methods in a degree of comfort higher that the average. Their sole
offense was gambling, which the legislature deemed advisable to make the subject of a penal law. The games in which they participated were
apparently played openly, in a licensed public saloon, where the officers of the law could have entered as easily as did the patrons. It is believed
that Act No. 1775 is adequate, if enforced, to supress the gambling proclivities of any person making a good living at a lawful trade or business.
For these reasons, the defendants are acquitted, with the costs de oficio.
Arellano, C.J., Torres and Carson, JJ., concur.
Johnson and Moreland, JJ., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. l-13288
September 25, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
VALENTIN GINER CRUZ, defendant-appellant.
Aurelio A. Torres for appellant.
Office of the Solicitor-General Paredes for appellee.
MALCOLM, J.:
Section 733 of the Revised Ordinances of the city of Manila enumerates eleven classes of individuals who shall be deemed to be vagrants. The
section includes any person who "acts as pimp or procurer." The words "pimp" and "procurer," practically synonymous in signification, are terms of
opprobrium. The commonly accepted definition of the word "pimp" (alcahuete) is "one who provides gratification for the lust of others; a procurer;
a panderer." (6 Words and Phrases, 5379.) The clause in question standing alone within semi-colons, it is not essential, in order to convict one of
vagarancy because a pimp or procurer, that this person have no visible means of support, or be an agent for a keeper of a house of prostitution,
etc.
A comparison of section 733 of the Revised Ordinances of the city of Manila of 1917 with the corresponding section of the preceding Revised
Ordinances discloses that the phrase "or acts as pimp or procurer" was not found in the old ordinances. Since the legislative body of the city of
Manila has taken the pains to include these words in the new ordinances, it must have done so for a purpose, which plainly is to put a stop to vile
traffic in human flesh. Such a laudable object on the part of the Municipal Board of the city of Manila should now be effectuated by judicial
enforcement.
The defendant, a cochero, having solicited an American soldier to go with him in his rig to find a woman of loose moral and having secured a Deliah
for the soldier, is "a pimp or procurer," guilty of the offense punished by section 733 of the Revised Ordinances of the city of Manila. Although this
fact was only shown by the testimony of one to support a judgment of conviction if, as in this instance, it satisfies beyond a reasonable doubt.
(U.S. vs. Olais [1917], 36 Phil., 828.)
For this offense, the defendant was sentenced in the Municipal Court and again in the Court of First Instance of the city of Manila to three months'
imprisonment and the costs. Although both of these judges apparently took into consideration in fixing the penalty that the defendant was as
recidivist, and although we are unable to find any demonstration of this fact in the record, nevertheless, as the penalty is within the limitations
permitted by the Ordinances, and as the offense of the defendant merits no judicial sympathy, it results that the judgment appealed from should
be affirmed with costs against the appellant.
So ordered.
Torres, Araullo, Street, Avanceña and Fisher, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 169364
September 18, 2009
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
EVANGELINE SITON y SACIL and KRYSTEL KATE SAGARANO y MEFANIA, Respondents.
DECISION
YNARES-SANTIAGO, J.:
If a man is called to be a street sweeper, he should sweep streets even as Michelangelo painted, or Beethoven composed music, or Shakespeare
wrote poetry. He should sweep streets so well that all the hosts of Heaven and Earth will pause to say, here lived a great street sweeper who did
his job well.
– Martin Luther King, Jr.
Assailed in this petition for review on certiorari is the July 29, 2005 Order1 of Branch 11, Davao City Regional Trial Court in Special Civil Case No. 30500-2004 granting respondents’ Petition for Certiorari and declaring paragraph 2 of Article 202 of the Revised Penal Code unconstitutional.
Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy pursuant to Article 202 (2) of the Revised Penal Code in two
separate Informations dated November 18, 2003, docketed as Criminal Case Nos. 115,716-C-2003 and 115,717-C-2003 and raffled to Branch 3 of
the Municipal Trial Court in Cities, Davao City. The Informations, read:
That on or about November 14, 2003, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned
accused, willfully, unlawfully and feloniously wandered and loitered around San Pedro and Legaspi Streets, this City, without any visible means to
support herself nor lawful and justifiable purpose.2
Article 202 of the Revised Penal Code provides:
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself
to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places or tramping or wandering about the country or the streets
without visible means of support;
3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or
uninhabited place belonging to another without any lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be
prostitutes.
Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not exceeding 200 pesos, and in
case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or
both, in the discretion of the court.
Instead of submitting their counter-affidavits as directed, respondents filed separate Motions to Quash3 on the ground that Article 202 (2) is
unconstitutional for being vague and overbroad.
In an Order4 dated April 28, 2004, the municipal trial court denied the motions and directed respondents anew to file their respective counteraffidavits. The municipal trial court also declared that the law on vagrancy was enacted pursuant to the State’s police power and justified by the
Latin maxim "salus populi est suprem(a) lex," which calls for the subordination of individual benefit to the interest of the greater number, thus:
Our law on vagrancy was enacted pursuant to the police power of the State. An authority on police power, Professor Freund describes laconically
police power "as the power of promoting public welfare by restraining and regulating the use of liberty and property." (Citations omitted). In fact
the person’s acts and acquisitions are hemmed in by the police power of the state. The justification found in the Latin maxim, salus populi est
supreme (sic) lex" (the god of the people is the Supreme Law). This calls for the subordination of individual benefit to the interests of the greater
number.In the case at bar the affidavit of the arresting police officer, SPO1 JAY PLAZA with Annex "A" lucidly shows that there was a prior
surveillance conducted in view of the reports that vagrants and prostitutes proliferate in the place where the two accused (among other women)
were wandering and in the wee hours of night and soliciting male customer. Thus, on that basis the prosecution should be given a leeway to prove
its case. Thus, in the interest of substantial justice, both prosecution and defense must be given their day in Court: the prosecution proof of the
crime, and the author thereof; the defense, to show that the acts of the accused in the indictment can’t be categorized as a crime.5
The municipal trial court also noted that in the affidavit of the arresting police officer, SPO1 Jay Plaza, it was stated that there was a prior
surveillance conducted on the two accused in an area reported to be frequented by vagrants and prostitutes who solicited sexual favors. Hence,
the prosecution should be given the opportunity to prove the crime, and the defense to rebut the evidence.1avvphi1
Respondents thus filed an original petition for certiorari and prohibition with the Regional Trial Court of Davao City,6directly challenging the
constitutionality of the anti-vagrancy law, claiming that the definition of the crime of vagrancy under Article 202 (2), apart from being vague,
results as well in an arbitrary identification of violators, since the definition of the crime includes in its coverage persons who are otherwise
performing ordinary peaceful acts. They likewise claimed that Article 202 (2) violated the equal protection clause under the Constitution because it
discriminates against the poor and unemployed, thus permitting an arbitrary and unreasonable classification.
The State, through the Office of the Solicitor General, argued that pursuant to the Court’s ruling in Estrada v. Sandiganbayan,7 the overbreadth and
vagueness doctrines apply only to free speech cases and not to penal statutes. It also asserted that Article 202 (2) must be presumed valid and
constitutional, since the respondents failed to overcome this presumption.
On July 29, 2005, the Regional Trial Court issued the assailed Order granting the petition, the dispositive portion of which reads:
WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby GRANTED. Paragraph 2 of Article 202 of the Revised Penal Code
is hereby declared unconstitutional and the Order of the court a quo, dated April 28, 2004, denying the petitioners’ Motion to Quash is set aside
and the said court is ordered to dismiss the subject criminal cases against the petitioners pending before it.
SO ORDERED.8
In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague and it violated the equal protection clause. It held that the
"void for vagueness" doctrine is equally applicable in testing the validity of penal statutes. Citing Papachristou v. City of Jacksonville,9 where an anti
vagrancy ordinance was struck down as unconstitutional by the Supreme Court of the United States, the trial court ruled:
The U.S. Supreme Court’s justifications for striking down the Jacksonville Vagrancy Ordinance are equally applicable to paragraph 2 of Article 202 of
the Revised Penal Code.
Indeed, to authorize a police officer to arrest a person for being "found loitering about public or semi-public buildings or places or tramping or
wandering about the country or the streets without visible means of support" offers too wide a latitude for arbitrary determinations as to who
should be arrested and who should not.
Loitering about and wandering have become national pastimes particularly in these times of recession when there are many who are "without
visible means of support" not by reason of choice but by force of circumstance as borne out by the high unemployment rate in the entire country.
To authorize law enforcement authorities to arrest someone for nearly no other reason than the fact that he cannot find gainful employment
would indeed be adding insult to injury.10
On its pronouncement that Article 202 (2) violated the equal protection clause of the Constitution, the trial court declared:
The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at present runs afoul of the equal protection clause of the
constitution as it offers no reasonable classification between those covered by the law and those who are not.
Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty
than is imposed upon another in like case offending.
Applying this to the case at bar, since the definition of Vagrancy under Article 202 of the Revised Penal Code offers no guidelines or any other
reasonable indicators to differentiate those who have no visible means of support by force of circumstance and those who choose to loiter about
and bum around, who are the proper subjects of vagrancy legislation, it cannot pass a judicial scrutiny of its constitutionality.11
Hence, this petition for review on certiorari raising the sole issue of:
WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED
PENAL CODE12
Petitioner argues that every statute is presumed valid and all reasonable doubts should be resolved in favor of its constitutionality; that,
citing Romualdez v. Sandiganbayan,13 the overbreadth and vagueness doctrines have special application to free-speech cases only and are not
appropriate for testing the validity of penal statutes; that respondents failed to overcome the presumed validity of the statute, failing to prove that
it was vague under the standards set out by the Courts; and that the State may regulate individual conduct for the promotion of public welfare in
the exercise of its police power.
On the other hand, respondents argue against the limited application of the overbreadth and vagueness doctrines. They insist that Article 202 (2)
on its face violates the constitutionally-guaranteed rights to due process and the equal protection of the laws; that the due process vagueness
standard, as distinguished from the free speech vagueness doctrine, is adequate to declare Article 202 (2) unconstitutional and void on its face; and
that the presumption of constitutionality was adequately overthrown.
The Court finds for petitioner.
The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the state to
maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and lawful
provided that no constitutional rights have been abridged.14 However, in exercising its power to declare what acts constitute a crime, the
legislature must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of
conduct and know what acts it is his duty to avoid.15 This requirement has come to be known as the void-for-vagueness doctrine which states that
"a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due process of law."16
In Spouses Romualdez v. COMELEC,17 the Court recognized the application of the void-for-vagueness doctrine to criminal statutes in appropriate
cases. The Court therein held:
At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list
of provisions in Republic Act No. 8189 can be deemed as a facial challenge. An appropriate "as applied" challenge in the instant Petition should be
limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189 – the provisions upon which petitioners are charged. An
expanded examination of the law covering provisions which are alien to petitioners’ case would be antagonistic to the rudiment that for judicial
review to be exercised, there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or
anticipatory.18
The first statute punishing vagrancy – Act No. 519 – was modeled after American vagrancy statutes and passed by the Philippine Commission in
1902. The Penal Code of Spain of 1870 which was in force in this country up to December 31, 1931 did not contain a provision on vagrancy.19 While
historically an Anglo-American concept of crime prevention, the law on vagrancy was included by the Philippine legislature as a permanent feature
of the Revised Penal Code in Article 202 thereof which, to repeat, provides:
ART. 202. Vagrants and prostitutes; penalty. – The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself
to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets
without visible means of support;
3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or
uninhabited place belonging to another without any lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be
prostitutes.
Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in
case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or
both, in the discretion of the court.
In the instant case, the assailed provision is paragraph (2), which defines a vagrant as any person found loitering about public or semi-public
buildings or places, or tramping or wandering about the country or the streets without visible means of support. This provision was based on the
second clause of Section 1 of Act No. 519 which defined "vagrant" as "every person found loitering about saloons or dramshops or gambling houses,
or tramping or straying through the country without visible means of support." The second clause was essentially retained with the modification
that the places under which the offense might be committed is now expressed in general terms – public or semi-public places.
The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take support mainly from the U.S. Supreme Court’s opinion in
the Papachristou v. City of Jacksonville20 case, which in essence declares:
Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to be informed as to what the State
commands or forbids." Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S. 453.
Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General
Construction Co., 269 U. S. 385, 269 U. S. 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the field of
regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines,
Inc. v. United States, 342 U. S. 337; United States v. National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1.
The poor among us, the minorities, the average householder, are not in business and not alerted to the regulatory schemes of vagrancy laws; and
we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the
vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce Motor Lines,
Inc. v. United States, supra.
The Jacksonville ordinance makes criminal activities which, by modern standards, are normally innocent. "Nightwalking" is one. Florida construes
the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the "habitual" wanderer or, as the ordinance
describes it, "common night walkers." We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleepinducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was a national virtue in his Commonwealth, and that it should
be encouraged. It is, however, a crime in Jacksonville.
xxxx
Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification "without any lawful
purpose or object" may be a trap for innocent acts. Persons "neglecting all lawful business and habitually spending their time by frequenting . . .
places where alcoholic beverages are sold or served" would literally embrace many members of golf clubs and city clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup. Letting
one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous
crimes.
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the
Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence
and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists
and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence.
xxxx
Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those convicted may be punished for no more than
vindicating affronts to police authority:
"The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancy-type proceedings is the
procedural laxity which permits 'conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient
dumping-ground for problems that appear to have no other immediate solution." Foote, Vagrancy-Type Law and Its Administration, 104
U.Pa.L.Rev. 603, 631.
xxxx
Another aspect of the ordinance's vagueness appears when we focus not on the lack of notice given a potential offender, but on the effect of the
unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law
as offering "punishment by analogy." Such crimes, though long common in Russia, are not compatible with our constitutional system.
xxxx
A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or
who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized
vagrancy standards -- that crime is being nipped in the bud -- is too extravagant to deserve extended treatment. Of course, vagrancy statutes are
useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in
its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is
not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds
society together.21
The underlying principles in Papachristou are that: 1) the assailed Jacksonville ordinance "fails to give a person of ordinary intelligence fair notice
that his contemplated conduct is forbidden by the statute;" and 2) it encourages or promotes opportunities for the application of discriminatory
law enforcement.
The said underlying principle in Papachristou that the Jacksonville ordinance, or Article 202 (2) in this case, fails to give fair notice of what
constitutes forbidden conduct, finds no application here because under our legal system, ignorance of the law excuses no one from compliance
therewith.22 This principle is of Spanish origin, and we adopted it to govern and limit legal conduct in this jurisdiction. Under American law,
ignorance of the law is merely a traditional rule that admits of exceptions. 23
Moreover, the Jacksonville ordinance was declared unconstitutional on account of specific provisions thereof, which are not found in Article 202
(2). The ordinance (Jacksonville Ordinance Code § 257) provided, as follows:
Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use juggling or unlawful games or plays,
common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons,
keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or
object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill
fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their
wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.
Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional, because such activities or habits as nightwalking, wandering
or strolling around without any lawful purpose or object, habitual loafing, habitual spending of time at places where alcoholic beverages are sold or
served, and living upon the earnings of wives or minor children, which are otherwise common and normal, were declared illegal. But these are
specific acts or activities not found in Article 202 (2). The closest to Article 202 (2) – "any person found loitering about public or semi-public
buildings or places, or tramping or wandering about the country or the streets without visible means of support" – from the Jacksonville ordinance,
would be "persons wandering or strolling around from place to place without any lawful purpose or object." But these two acts are still not the
same: Article 202 (2) is qualified by "without visible means of support" while the Jacksonville ordinance prohibits wandering or strolling "without
any lawful purpose or object," which was held by the U.S. Supreme Court to constitute a "trap for innocent acts."
Under the Constitution, the people are guaranteed the right to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized. 24 Thus, as with any other act or offense, the requirement
of probable cause provides an acceptable limit on police or executive authority that may otherwise be abused in relation to the search or arrest of
persons found to be violating Article 202 (2). The fear exhibited by the respondents, echoing Jacksonville, that unfettered discretion is placed in the
hands of the police to make an arrest or search, is therefore assuaged by the constitutional requirement of probable cause, which is one less than
certainty or proof, but more than suspicion or possibility.25
Evidently, the requirement of probable cause cannot be done away with arbitrarily without pain of punishment, for, absent this requirement, the
authorities are necessarily guilty of abuse. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers,
the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith of the peace officers making the arrest.26
The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects. The constitutional
provision sheathes the private individual with an impenetrable armor against unreasonable searches and seizures. It protects the privacy and
sanctity of the person himself against unlawful arrests and other forms of restraint, and prevents him from being irreversibly cut off from that
domestic security which renders the lives of the most unhappy in some measure agreeable. 27
As applied to the instant case, it appears that the police authorities have been conducting previous surveillance operations on respondents prior to
their arrest. On the surface, this satisfies the probable cause requirement under our Constitution. For this reason, we are not moved by
respondents’ trepidation that Article 202 (2) could have been a source of police abuse in their case.
Since the Revised Penal Code took effect in 1932, no challenge has ever been made upon the constitutionality of Article 202 except now. Instead,
throughout the years, we have witnessed the streets and parks become dangerous and unsafe, a haven for beggars, harassing "watch-your-car"
boys, petty thieves and robbers, pickpockets, swindlers, gangs, prostitutes, and individuals performing acts that go beyond decency and morality, if
not basic humanity. The streets and parks have become the training ground for petty offenders who graduate into hardened and battle-scarred
criminals. Everyday, the news is rife with reports of innocent and hardworking people being robbed, swindled, harassed or mauled – if not killed –
by the scourge of the streets. Blue collar workers are robbed straight from withdrawing hard-earned money from the ATMs (automated teller
machines); students are held up for having to use and thus exhibit publicly their mobile phones; frail and helpless men are mauled by thrill-seeking
gangs; innocent passers-by are stabbed to death by rowdy drunken men walking the streets; fair-looking or pretty women are stalked and
harassed, if not abducted, raped and then killed; robbers, thieves, pickpockets and snatchers case streets and parks for possible victims; the old are
swindled of their life savings by conniving streetsmart bilkers and con artists on the prowl; beggars endlessly pester and panhandle pedestrians and
commuters, posing a health threat and putting law-abiding drivers and citizens at risk of running them over. All these happen on the streets and in
public places, day or night.
The streets must be protected. Our people should never dread having to ply them each day, or else we can never say that we have performed our
task to our brothers and sisters. We must rid the streets of the scourge of humanity, and restore order, peace, civility, decency and morality in
them.
This is exactly why we have public order laws, to which Article 202 (2) belongs. These laws were crafted to maintain minimum standards of
decency, morality and civility in human society. These laws may be traced all the way back to ancient times, and today, they have also come to be
associated with the struggle to improve the citizens’ quality of life, which is guaranteed by our Constitution. 28 Civilly, they are covered by the
"abuse of rights" doctrine embodied in the preliminary articles of the Civil Code concerning Human Relations, to the end, in part, that any person
who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for
the damage.29 This provision is, together with the succeeding articles on human relations, intended to embody certain basic principles "that are to
be observed for the rightful relationship between human beings and for the stability of the social order."30
In civil law, for example, the summary remedy of ejectment is intended to prevent criminal disorder and breaches of the peace and to discourage
those who, believing themselves entitled to the possession of the property, resort to force rather than to some appropriate action in court to
assert their claims.31 Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying
the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. 32
Criminally, public order laws encompass a whole range of acts – from public indecencies and immoralities, to public nuisances, to disorderly
conduct. The acts punished are made illegal by their offensiveness to society’s basic sensibilities and their adverse effect on the quality of life of the
people of society. For example, the issuance or making of a bouncing check is deemed a public nuisance, a crime against public order that must be
abated.33 As a matter of public policy, the failure to turn over the proceeds of the sale of the goods covered by a trust receipt or to return said
goods, if not sold, is a public nuisance to be abated by the imposition of penal sanctions.34 Thus, public nuisances must be abated because they
have the effect of interfering with the comfortable enjoyment of life or property by members of a community.
Article 202 (2) does not violate the equal protection clause; neither does it discriminate against the poor and the unemployed. Offenders of public
order laws are punished not for their status, as for being poor or unemployed, but for conducting themselves under such circumstances as to
endanger the public peace or cause alarm and apprehension in the community. Being poor or unemployed is not a license or a justification to act
indecently or to engage in immoral conduct.
Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It is a public order crime which punishes persons for
conducting themselves, at a certain place and time which orderly society finds unusual, under such conditions that are repugnant and outrageous
to the common standards and norms of decency and morality in a just, civilized and ordered society, as would engender a justifiable concern for
the safety and well-being of members of the community.
Instead of taking an active position declaring public order laws unconstitutional, the State should train its eye on their effective implementation,
because it is in this area that the Court perceives difficulties. Red light districts abound, gangs work the streets in the wee hours of the morning,
dangerous robbers and thieves ply their trade in the trains stations, drunken men terrorize law-abiding citizens late at night and urinate on
otherwise decent corners of our streets. Rugby-sniffing individuals crowd our national parks and busy intersections. Prostitutes wait for customers
by the roadside all around the metropolis, some even venture in bars and restaurants. Drug-crazed men loiter around dark avenues waiting to
pounce on helpless citizens. Dangerous groups wander around, casing homes and establishments for their next hit. The streets must be made safe
once more. Though a man’s house is his castle,35 outside on the streets, the king is fair game.
The dangerous streets must surrender to orderly society.
Finally, we agree with the position of the State that first and foremost, Article 202 (2) should be presumed valid and constitutional. When
confronted with a constitutional question, it is elementary that every court must approach it with grave care and considerable caution bearing in
mind that every statute is presumed valid and every reasonable doubt should be resolved in favor of its constitutionality. 36 The policy of our courts
is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and
unmistakable showing to the contrary. To doubt is to sustain, this presumption is based on the doctrine of separation of powers which enjoins
upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President
of the Philippines, a law has been carefully studied, crafted and determined to be in accordance with the fundamental law before it was finally
enacted.37
It must not be forgotten that police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in
the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the
same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and
the general welfare.38 As an obvious police power measure, Article 202 (2) must therefore be viewed in a constitutional light.
WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional Trial Court of Davao City in Special Civil Case No. 30-500-2004
declaring Article 202, paragraph 2 of the Revised Penal Code UNCONSTITUTIONAL is REVERSED and SET ASIDE.
Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus continue.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 211465
December 3, 2014
PEOPLE OF THE :PHILIPPINES, Plaintiff-appellee,
vs.
SHIRLEY A. CASIO, Accused-appellant.
DECISION
LEONEN, J.:
"Chicks mo dong?"1
With this sadly familiar question being used on the streets of many of our cities, the fate of many desperate women is sealed and their futures
vanquished. This case resulted in the rescue of two minors from this pernicious practice. Hopefully, there will be more rescues. Trafficking in
persons is a deplorable crime. It is committed even though the minor knew about or consented to the act of trafficking.
This case involves Republic Act No. 9208,2 otherwise known as the "Anti-Trafficking in Persons Act of 2003."3
Accused Shirley A. Casio was charged for the violation of Republic Act No. 9208, Section 4(a), qualified by Section 6(a). The information against
accused, dated May 5, 2008, states:
That on or about the 3rd day of May 2008, at about 1:00 o’clock A.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, with deliberate intent, with intent to gain, did then and there hire and/or recruit AAA, a minor, 17 years old and BBB for
the purpose of prostitution and sexual exploitation, by acting as their procurer for different customers, for money, profit or any other
consideration, in Violation of Sec. 4, Par. (a), Qualified by Sec. 6, Par. (a), of R.A. 9208 (Qualified Trafficking in Persons).
CONTRARY TO LAW.4
The facts, as found by the trial court and the Court of Appeals, are as follows:
On May 2, 2008, International Justice Mission (IJM),5 a nongovernmental organization, coordinated with the police in order to entrap persons
engaged in human trafficking in Cebu City.6
Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe Altubar, PO1 Albert Luardo, and PO1 Roy Carlo Veloso composed the team of police
operatives.7 PO1 Luardo and PO1 Veloso were designated as decoys, pretending to be tour guides looking for girls to entertain their guests.8 IJM
provided them with marked money, which was recorded in the police blotter. 9
The team went to Queensland Motel and rented Rooms 24 and 25. These rooms were adjacent to each other. Room 24 was designated for the
transaction while Room 25 was for the rest of the police team. 10
PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in Barangay Kamagayan, Cebu City’s red light district. Accused noticed them and
called their attention by saying "Chicks mo dong?" (Do you like girls, guys?).11
During trial, PO1 Luardo and PO1 Veloso testified that their conversation with accused went as follows:
Accused: Chicks mo dong?(Do you like girls, guys?)
PO1 Luardo: Unya mga bag-o? Kanang batan-on kay naa mi guests naghulat sa motel. (Are they new? They must be young because we have guests
waiting at the motel.)
Accused: Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get them.)12
At that point, PO1 Luardo sent a text message to PSI Ylanan that they found a prospective subject. 13
After a few minutes, accused returned with AAA and BBB, private complainants in this case.14 Accused: Kining duha kauyon mo ani? (Are you
satisfied with these two?)
PO1 Veloso: Maayo man kaha na sila modala ug kayat? (Well, are they good in sex?)15 Accused gave the assurance that the girls were good in sex.
PO1 Luardo inquired how much their serviceswould cost. Accused replied, "Tag kinientos" (₱500.00). 16
PO1 Veloso and PO1 Luardo convinced accused to come with them to Queensland Motel. Upon proceeding toRoom 24, PO1 Veloso handed the
marked money to accused.17
As accused counted the money, PO1 Veloso gave PSI Ylanan a missed call. This was their pre-arranged signal. The rest of the team proceeded to
Room 24, arrested accused, and informed her of her constitutional rights. The police confiscated the marked money from accused.18 Meanwhile,
AAA and BBB "were brought to Room 25 and placed in the custody of the representatives from the IJM and the DSWD." 19
During trial, AAA testified that she was born on January 27, 1991. This statement was supported by a copy of her certificate of live birth.20
AAA narrated that in 2007, she worked as a house helper in Mandaue City. In March 2008 she stopped working as a house helper and transferred
to Cebu City. She stayed with her cousin, but she subsequently moved to a boarding house. It was there where she met her friend, Gee Ann. AAA
knew that Gee Ann worked in a disco club. When Gee Ann found out that AAA was no longer a virgin, she offered AAA work. AAA agreed because
she needed the money in order to helpher father. AAA recalled that she had sex with her first customer. She was paid ₱200.00 and given an
additional ₱500.00 as tip. For the first few weeks, Gee Ann provided customers for AAA. Eventually, Gee Ann brought her to Barangay Kamagayan,
telling her that there were more customers in that area.21
AAA stated that she knew accused was a pimp because AAA would usually see her pimping girls to customers in Barangay Kamagayan.22 AAA
further testified that on May 2, 2008, accused solicited her services for a customer. That was the first time that she was pimped by
accused.23 Accused brought her, BBB, and a certain Jocelyn to Queensland Motel. 24
AAA testified that Jocelyn stayed inthe taxi, while she and BBB went to Room 24. It was in Room 24 where the customer paid Shirley. The police
rushed in and toldAAA and BBB to go to the other room. AAA was then met by the Department of Social Welfare and Development personnel who
informed her that she was rescued and not arrested.25
AAA described that her job as a prostitute required her to display herself, along with other girls, between 7 p.m. to 8 p.m. She received ₱400.00 for
every customer who selected her.26
The prosecution also presented the police operatives during trial. PSI Ylanan, SPO1 Mendaros, and SPO1 Altubar testified that after PO1 Veloso had
made the missed call to PSI Ylanan, they "rushed to Room 24 and arrested the accused." 27 SPO1 Altubar retrieved the marked money worth
₱1,000.00 from accused’s right hand "and upon instruction from PCINSP Ylanan recorded the same at the ‘police blotter prior operation’. . . ."28
The trial court noted that AAA requested assistance from the IJM "in conducting the operation against the accused." 29
Version of the accused
In defense, accused testified thatshe worked as a laundry woman. On the evening of May 2, 2008, she went out to buy supper. While walking, she
was stopped by two men on board a blue car. The two men asked her if she knew someone named Bingbing. She replied that she only knew
Gingging but not Bingbing. The men informed her that they were actually looking for Gingging, gave her a piece of paper witha number written on
it, and told her to tell Gingging to bring companions. When accused arrived home, she contacted Gingging. Gingging convinced her to come
because allegedly, she would be given money by the two males. 30 Ruling of the trial court
The Regional Trial Court, Branch 14 in Cebu City found accused guilty beyond reasonable doubt and held31 that:
Accused had consummated the act of trafficking of person[s] . . . as defined under paragraph (a), Section 3 of R.A. 9208 for the purpose of letting
her engage in prostitution asdefined under paragraph [c] of the same Section; the act of "sexual intercourse" need not have been consummated for
the mere "transaction" i.e. the ‘solicitation’ for sex and the handing over of the "bust money" of Php1,000.00 already consummated the said act.
....
WHEREFORE, the Court finds accused, SHIRLEY A. CASIO, GUILTY beyond reasonable doubt of trafficking in persons under paragraph (a), Section 4
as qualified under paragraph (a), Section 6 of R.A. 9208 and sentenced to suffer imprisonment of TWENTY (20) YEARS and to pay a fine of ONE
MILLION (Php1,000,000.00).
Finally, accused is ordered to pay the costs of these proceedings.
SO ORDERED[.]32
Ruling of the Court of Appeals
The Court of Appeals affirmed the findings of the trial court but modified the fine and awarded moral damages. The dispositive portion of the
decision33 reads:
WHEREFORE, in view of the foregoing premises, the instant appeal is hereby DENIED. The assailed Decision dated 10 August 2010 promulgated by
the Regional Trial Court, Branch 14 in Cebu City in Crim. Case No. CBU-83122 is AFFIRMED WITH MODIFICATIONS. The accused-appellant is
accordingly sentenced to suffer the penalty of life imprisonment and a fine of Php2,000,000 and is ordered to pay each of the private complainants
Php150,000 as moral damages.
SO ORDERED.34
Accused filed a notice of appeal35 on August 28, 2013, which the Court of Appeals noted and gavedue course in its resolution36 dated January 6,
2014. The case records of CA-G.R. CEB-CR No. 01490 were received by this court on March 17, 2014.37
In the resolution38 dated April 29, 2014, this court resolved to notify the parties that they may file their respective supplemental briefs within 30
days from notice. This court also required the Superintendent of the Correctional Institution for Women to confirm the confinement of accused.39
Counsel for accused40 and the Office of the Solicitor General41 filed their respective manifestations, stating that they would no longer file
supplemental briefs considering that all issues had been discussed in the appellant’s brief and appellee’s brief filed before the Court of Appeals.
Through a letter42 dated June 17, 2014, Superintendent IV Rachel D. Ruelo confirmed accused’s confinement at the Correctional Institution for
Women since October 27, 2010.
The sole issue raised by accused iswhether the prosecution was able to prove her guilt beyond reasonable doubt.
However, based on the arguments raised in accused’s brief, the sole issue may be dissected into the following:
(1) Whether the entrapment operation conducted by the police was valid, considering that there was no prior surveillance and the police
did not know the subject of the operation;43
(2) Whether the prosecution was able to prove accused’s guilt beyond reasonable doubt even though there was no evidence presented
to show that accused has a history of engaging in human trafficking;44 and
(3) Whether accused was properly convicted of trafficking in persons, considering that AAA admitted that she works as a prostitute.45
Arguments of accused
Accused argues that there was no valid entrapment. Instead, she was instigated into committing the crime. 46 The police did not conduct prior
surveillance and did not evenknow who their subject was.47 Neither did the police know the identities of the alleged victims.
Accused further argues that under the subjective test, she should be acquitted because the prosecution did notpresent evidence that would prove
she had a history of engaging in human trafficking or any other offense. She denied being a pimp and asserted that she was a laundry woman.48 In
addition, AAA admitted that she worked as a prostitute. Thus, it was her decision to display herself to solicit customers.49
Arguments of the plaintiff-appellee
The Office of the Solicitor General, counsel for plaintiff-appellee People of the Philippines, argued that the trial court did not err in convicting
accused because witnesses positively identified her as the person who solicited customers and received money for AAA and BBB. 50 Entrapment
operations are valid and have been recognized by courts.51Likewise, her arrest in flagrante delicto is valid.52 Hence, the trial court was correct in
stating that accused had "fully consummated the act of trafficking of persons. . ."53
We affirm accused Shirley A. Casio’s conviction.
I.
Background of Republic Act No. 9208
The United Nations Convention against Transnational Organized Crime (UN CTOC) was "adopted and opened for signature, ratification and
accession"54 on November 15, 2000. The UN CTOC is supplemented by three protocols: (1) the Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children; (2) the Protocol against the Smuggling of Migrants by Land, Sea and Air; and, (3) the Protocol against
the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. 55
On December 14, 2000, the Philippines signed the United Nations "Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children" (Trafficking Protocol).56 This was ratified by the Philippine Senate on September 30, 2001.57 The Trafficking Protocol’s entry
into force was on December 25, 2003.58
In the Trafficking Protocol, human trafficking is defined as:
Article 3 Use of terms For the purposes of this Protocol:
(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat
or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or
of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose
of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered
"trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) "Child" shall mean any person under eighteen years of age.
Senator Loren Legarda, in her sponsorship speech, stated that the "Anti-Trafficking Act will serve as the enabling law of the country’s commitment
to [the] protocol."59
Senator Luisa Ejercito Estrada also delivered a sponsorship speech and described trafficking in persons as follows:
Trafficking in human beings, if only to emphasize the gravity of its hideousness, is tantamount to modern-day slavery at work. It is a manifestation
of one of the most flagrant forms of violence against human beings. Its victims suffer the brunt of this insidious form of violence. It is exploitation,
coercion, deception, abduction, rape, physical, mental and other forms of abuse, prostitution, forced labor, and indentured servitude.
....
As of this time, we have signed the following: the Convention on the Elimination of all Forms of Discrimination Against Women; the 1995
Convention on the Rights of the Child; the United Nations Convention on the Protection of Migrant Workers and their Families; and the United
Nations’ Resolution on Trafficking in Women and Girls, among others.
Moreover, we have also expressed our support for the United Nations’ Convention Against Organized Crime, including the Trafficking Protocol in
October last year.
At first glance, it appears thatwe are very responsive to the problem. So it seems.
Despite these international agreements, we have yet to come up with a law that shall squarely address human trafficking. 60
During the interpellation of Republic Act No. 9208, then numbered as Senate Bill No. 2444, Senator Teresa Aquino-Oreta asked if there was a
necessity for an anti-trafficking law when other laws exist that cover trafficking.61
Senator Luisa Ejercito Estrada explained:
At present, Mr. President, the relevant laws to the trafficking issue are the Revised Penal Code, Republic Act No. 8042 or the Migrant Workers and
Overseas Filipino Act, R[epublic] A[ct] No. 6955 or the Mail-Order Bride Act, and Republic Act No. 8239 or the Philippine Passport Act. These laws
address issues such as illegal recruitment, prostitution, falsification of public documents and the mail-order bride scheme. These laws do not
respond to the issue of recruiting, harboring or transporting persons resulting in prostitution, forced labor, slavery and slavery-like practices. They
only address to one or some elements of trafficking independent of their results or consequence.62(Emphasis supplied)
Thus, Republic Act No. 9208 was enacted in order to fully address the issue of human trafficking. Republic Act No. 9208 was passed on May 12,
2003, and approved on May 26, 2003.
II.
Elements of trafficking in persons
The elements of trafficking inpersons can be derived from its definition under Section 3(a) of Republic Act No. 9208, thus:
(1) The actof "recruitment, transportation, transfer or harbouring, or receipt of persons with or without the victim’s consent or
knowledge, within or across national borders."
(2) The means used which include "threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of
position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of
a person having control over another; and
(3) The purpose of trafficking is exploitation which includes "exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal or sale of organs."63
On January 28, 2013,Republic Act No. 1036464 was approved, otherwise known as the "Expanded Anti-Trafficking in Persons Act of 2012." Section
3(a) of Republic Act No. 9208 was amended by Republic Act No. 10364 as follows:
SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to read as follows:
"SEC. 3. Definition of Terms. – As used in this Act:
"(a) Trafficking in Persons – refers to the recruitment, obtaining, hiring, providing, offering, transportation, transfer, maintaining, harboring, or
receipt of persons with or without the victim’s consent or knowledge, within or across national borders by means of threat, or use of force, or
other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the
giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation
which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs.
"The recruitment, transportation, transfer, harboring, adoption or receipt of a child for the purpose of exploitation or when the adoption is induced
by any form of consideration for exploitative purposes shall also be considered as ‘trafficking in persons’ even if it does not involve any of the
means set forth in the preceding paragraph. (Emphasis supplied)
Under Republic Act No. 10364, the elements of trafficking in persons have been expanded to include the following acts:
(1) The act of "recruitment, obtaining, hiring, providing, offering, transportation, transfer, maintaining, harboring, or receipt of persons
with or without the victim’s consent or knowledge, within or across national borders;"
(2) The means used include "by means of threat, or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power
or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person"
(3) The purpose of trafficking includes "the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or
services, slavery, servitude or the removal or sale of organs" (Emphasis supplied)
The Court of Appeals found thatAAA and BBB were recruited by accused when their services were peddled to the police who acted as
decoys.65 AAA was a child at the time that accused peddled her services.66 AAA also stated that she agreed to work as a prostitute because she
needed money.67 Accused took advantage of AAA’s vulnerability as a child and as one who need money, as proven by the testimonies of the
witnesses.68
III.
Knowledge or consent of the minor is not a defense under Republic Act No. 9208.
Accused claims that AAA admitted engaging in prostitution even before May 2, 2008. She concludes that AAA was predisposed to having sex with
"customers" for money.69 For liability under our law, this argument is irrelevant. As defined under Section 3(a) of Republic Act No. 9208, trafficking
in persons can still becommitted even if the victim gives consent.
SEC. 3. Definition of Terms.— As used in this Act:
a. Trafficking in Persons - refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the
victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the persons, or, the giving or
receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation
which includes ata minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services,
slavery, servitude or the removal or sale of organs.
The recruitment transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in
persons" even if it does not involve any of the means set forth in the preceding paragraph.70 (Emphasis supplied)
The victim’s consent is rendered meaningless due to the coercive, abusive, or deceptive means employed by perpetrators of human
trafficking.71 Even without the use of coercive, abusive, or deceptive means, a minor’s consent is not given outof his or her own free will.
Section 4 of Republic Act No. 9208 enumerates the different acts of trafficking in persons. Accused was charged under Section 4(a), which states:
SEC. 4. Acts of Trafficking in Persons.— It shall be unlawful for any person, natural or judicial, to commit any of the following acts.
a. To recruit, transport, transfer, harbor, provide, or receive a person by any means, including those done under the pretext of domestic
or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;72
Republic Act No. 9208 further enumerates the instances when the crime of trafficking in persons is qualified.
SEC. 6. Qualified Trafficking in Persons.— The following are considered as qualified trafficking: a. When the trafficked person is a child;
b. When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said
adoption is for the purpose of prostitution, pornography, sexual exploitation,forced labor, slavery, involuntary servitude or debt bondage;
c. When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group
of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against
three (3) or more persons, individually or as a group;
d. When the offender is an ascendant, parent, sibling, guardian or a person who exercise authority over the trafficked person or when the
offense is committed by a public officer or employee;
e. When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;
f. When the offender is a member of the military or law enforcement agencies; and
g. When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is
afflicted with Human Immunod eficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS). (Emphasis supplied) 73
Section 3 (b) of Republic Act No. 9208 defines "child" as:
SEC. 3. Definition of Terms.— As used in this Act:
....
b. Child- refers to a person below eighteen (18) years of age or one who is over eighteen (18) but isunable to fully take care of or protect
himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.74
Based on the definition of trafficking in persons and the enumeration of acts of trafficking in persons, accused performed all the elements in the
commission of the offense when she peddled AAA and BBB and offered their services to decoys PO1 Veloso and PO1 Luardo in exchange for
money. The offense was also qualified because the trafficked persons were minors.
Here, AAA testified as to how accused solicited her services for the customers waiting at Queensland Motel. AAA also testified that she was only 17
years old when accused peddled her. Her certificate of live birth was presented as evidence to show that she was born on January 27, 1991.
The prosecution was able to prove beyond reasonable doubt that accused committed the offense of trafficking in persons, qualified by the fact that
one of the victims was a child. As held by the trial court:
[T]he act of "sexual intercourse" need not have been consummated for the mere "transaction" i.e. that ‘solicitation’ for sex and the handing over of
the "bust money" of Php.1,000.00 already consummated the said act.75
IV.
Validity of the entrapment operation
In People v. Doria,76 this court discussed the objective test and the subjective test to determine whether there was a valid entrapment operation:
. . . American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United States to
determine whether entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged, his
state of mind and inclination before his initial exposure to government agents. All relevant facts such as the accused's mental and character traits,
his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state of mind before the crime.
The predisposition test emphasizes the accused's propensity to commit the offense rather than the officer's misconduct and reflects an attempt to
draw a line between a "trap for the unwary innocent and the trap for the unwary criminal." If the accused was found to have been ready and
willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent usedan unduly persuasive
inducement.
Some states, however, have adopted the "objective" test. . . . Here, the court considers the nature of the police activity involved and the propriety
of police conduct. The inquiry is focused on the inducements used by government agents, on police conduct, not on the accused and his
predisposition to commit the crime.For the goal of the defense is to deter unlawful police conduct. The test of entrapment is whether the conduct
of the law enforcement agent was likely to induce a normally law-abiding person, other than one who is ready and willing, to commit the offense;
for purposes of this test, it is presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented by the
simple opportunity to act unlawfully. (Emphasis supplied, citations omitted)77
Accused argued that in our jurisprudence, courts usually apply the objective test in determining the whether there was an entrapment operation or
an instigation.78 However, the use of the objective test should not preclude courts from also applying the subjective test. She pointed out that:
Applying the "subjective"test it is worth invoking that accusedappellant procures income from being a laundry woman. The prosecution had not
shown any proof evidencing accused-appellant’s history in human trafficking or engagement in any offense. She is not even familiar to the team
who had has [sic] been apprehending human traffickers for quite some time.79 (Citations omitted)
Accused further argued that the police should have conducted a prior surveillance before the entrapment operation.
Time and again, this court has discussed the difference between entrapment and instigation. In Chang v. People, 80this court explained that:
There is entrapment when law officers employ ruses and schemes to ensure the apprehension of the criminal while in the actual commission of the
crime. There is instigation when the accused is induced to commit the crime. The difference in the nature of the two lies in the origin of the
criminal intent. In entrapment, the mens reaoriginates from the mind of the criminal. The idea and the resolve to commit the crime comes from
him. In instigation, the law officer conceives the commission of the crime and suggests to the accused who adopts the idea and carries it into
execution.81
Accused contends that using the subjective test, she was clearly instigated by the police to commit the offense. She denied being a pimp and
claimed that she earned her living as a laundrywoman. On this argument, we agree with the finding of the Court of Appeals:
[I]t was the accused-appellant who commenced the transaction with PO1 Luardo and PO1 Veloso by calling their attention on whether they wanted
girls for that evening, and when the officers responded, it was the accused-appellant who told them to wait while she would fetch the girls for their
perusal.82
This shows that accused was predisposed to commit the offense because she initiated the transaction. As testified by PO1 Veloso and PO1 Luardo,
accused called out their attention by saying "Chicks mo dong?" If accused had no predisposition to commit the offense, then she most likely would
not have asked PO1 Veloso and PO1 Luardo if they wanted girls.
The entrapment would still be valid using the objective test. The police merely proceeded to D. Jakosalem Street in Barangay Kamagayan. It was
accused who asked them whether they wanted girls. There was no illicit inducement on the part of the police for the accused to commit the crime.
When accused was arrested, she was informed of her constitutional rights.83 The marked money retrieved from her was recorded in the police
blotter prior to the entrapment operation and was presented in court as evidence.84
On accused’s alibi thatshe was merely out to buy her supper that night, the Court of Appeals noted that accused never presented Gingging in court.
Thus, her alibi was unsubstantiated and cannot be given credence.85
With regard to the lack of prior surveillance, prior surveillance is not a condition for an entrapment operation’s validity.86 In People v. Padua87 this
court underscored the value of flexibility in police operations:
A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust operation, the conduct of which has no rigid or textbook
method. Flexibility is a trait of good police work. However the police carry out its entrapment operations, for as long as the rights of the accused
have not been violated in the process, the courts will not pass on the wisdom thereof. The police officers may decide that time is of the essence
and dispense with the need for prior surveillance.88 (Citations omitted)
This flexibility is even more important in cases involving trafficking of persons. The urgency of rescuing the victims may at times require immediate
but deliberate action on the part of the law enforcers.
V.
Imposition of fine and award of damages
The Court of Appeals properly imposed the amount of 2,000,000.00. Section 10 (b) of Republic Act No. 9208 provides that:
SEC. 10. Penalties and Sanctions.— The following penalties and sanctions are hereby established for the offenses enumerated in this Act:
....
c. Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty of life imprisonment and a fine of not less than Two
million pesos (₱2,000,000.00) but not more than Five million pesos (₱5,000,000.00);
However, we modify by raising the award of moral damages from ₱150,000.0089 to ₱500,000.00. We also award exemplary damages in the amount
of ₱100,000.00. These amounts are in accordance with the ruling in People v. Lalli90 where this court held that:
The payment of ₱500,000 as moral damages and ₱100,000 as exemplary damages for the crime of Trafficking in Persons as a Prostitute finds basis
in Article 2219 of the Civil Code, which states:
Art. 2219. Moral damages may be recovered in the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
....
The criminal case of Trafficking in Persons as a Prostitute is an analogous case to the crimes of seduction, abduction, rape, or other lascivious acts.
In fact, it is worse. To be trafficked as a prostitute without one’s consent and to be sexually violated four to five times a day by different strangers is
horrendous and atrocious. There is no doubt that Lolita experienced physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, and social humiliation when she was trafficked as a prostitute in Malaysia. Since the crime of
Trafficking in Persons was aggravated, being committed by a syndicate, the award of exemplary damages is likewise justified. 91
Human trafficking indicts the society that tolerates the kind of poverty and its accompanying desperation that compels our women to endure
indignities. It reflects the weaknesses of that society even as it convicts those who deviantly thrive in such hopelessness. We should continue to
strive for the best of our world, where our choices of human intimacies are real choices, and not the last resort taken just to survive. Human
intimacies enhance our best and closest relationships. It serves as a foundation for two human beings to face life’s joys and challenges while
continually growing together with many shared experiences. The quality of our human relationships defines the world that we create also for
others.
Regardless of the willingness of AAA and BBB, therefore, to be trafficked, we affirm the text and spirit of our laws. Minors should spend their
adolescence moulding their character in environments free of the vilest motives and the worse of other human beings. The evidence and the law
compel us to affirm the conviction of accused in this case.
But this is not all that we have done. By fulfilling our duties, we also express the hope that our people and our government unite against everything
inhuman. We contribute to a commitment to finally stamp out slavery and human trafficking.
There are more AAA's and BBBs out there. They, too, deserve to be rescued. They, too, need to be shown that in spite of what their lives have
been, there is still much good in our world.
WHEREFORE, premises considered, we AFFIRM the decision of the Court of Appeals dated June 27, 2013, finding accused Shirley A. Casio guilty
beyond reasonable doubt of violating Section 4(a), qualified by Section 6(a) of Republic Act No. 9208, and sentencing her to suffer the penalty of
life imprisonment and a fine of ₱2,000,000.00, with the MODIFICATION that accused-appellant shall not be eligible for parole under Act No. 4103
(Indeterminate Sentence Law) in accordance with Section 3 of Republic Act No. 9346.92
The award of damages is likewise MODIFIED as follows:
Accused is ordered to pay each of the private complainants:
(1) ₱500,000.00 as moral damages; and
(2) ₱100,000.00 as exemplary damages.
SO ORDERED.
MARVIC M.V.F. LEONEN
Associate Justice